• III. New Legal Developments
    Jun 16, 2015

    This section will discuss some recent trends in cases decided under the FMLA.

    This section assumes that the reader is familiar with the previous sections outlining FMLA basics.

    A. What is a Qualifying Reason for FMLA Leave?

    Employers should be wary of overly narrow interpretations of the definitions of the four qualifying reasons for FMLA.

    --Hodgens v. General Dynamics Corp. ( 1st Cir. 1998). In this first case to be decided by the First Circuit Court of Appeals (the federal Appeals Court covering Maine) under the FMLA, the Court made it clear that it would not be taking a narrow view of "serious health condition." The court below had dismissed the case because it found that the employee could not prove he was entitled to FMLA-protected leave, i.e., that he did not have a serious health condition. Specifically, his physician was "never able to diagnose precisely what caused [the employee's] symptoms." The First Circuit disagreed with this holding, noting that "[i]t seems unlikely that Congress intended to punish people who are unlucky enough to develop new diseases or to suffer serious symptoms for some period of time before the medical profession is able to diagnose the cause of the problem." It is an appropriate use ofFMLA leave to diagnose and treat symptoms that do not necessarily have a specific diagnosis attached to them, as long as the condition meets one of the six definitions of "serious health condition" as defined in the regulations. The Court also found that the statutory requirement that an individual be "unable to perform" his or her position in order to qualify for FMLA-protected leave did not amount to a requirement that the individual be physically incapacitated to perform the work. Instead, the Court read the statute to protect absences that are required for the purposes of diagnosis and treatment of a serious health condition. For example, the employee must be at the doctor's office for testing, the employee is "unable to perform" his or her job during that time.

    --Kelley v. Crosfield Catalyst (7th Cir. 1998). An employee applied for FMLA leave to travel to another state to take custody of his daughter after a lengthy legal battle. The employer denied leave, pointing to the FMLA regulations, which define "adoption" as the legal process in which an individual becomes the legal parent of another's child. In this case, the employee was the child's biological father but was not her legal father until the legal proceedings were resolved just before the request for leave. Consequently, he was seeking leave to take custody after becoming the legal parent of another's child, and the employer was liable for all damages flowing from the denial of leave.

    B. Employer Failure to Designate Leave or Notify Employees of Their Rights & Responsibilities

    Employers who fail to designate a leave of absence as FMLA leave or who fail to notify employees of their rights under the FMLA have been held in some cases to have waived the right to refuse to reinstate employees to their positions at the end of leave. Nevertheless, some courts have reacted negatively to the notion that an employer's "technical" violation of the regulations concerning designation and notification of rights and responsibilities can serve to give an employee additional substantive rights. For example:

    --Cox v. Autozone, Inc. (M.D. Ala. 1998). A manager at a retail store took temporary disability leave due to complications related to her pregnancy. Although the leave of absence qualified under the FMLA, the employer failed to designate it as such. The manager stayed out of work for 15 weeks, receiving 13 weeks of short-term disability (STD) benefits (the employer's maximum) and 2 unpaid weeks of leave. When she returned she was given the position of assistant manager, with a lower salary .The employer claimed that because she exceeded her FMLA-protected leave of 12 weeks, it was not required to return her to the position of manager. The employee claimed that under the regulations, the failure to designate her leave as FMLA leave and to advise her that her right to restoration would end after 12 weeks meant that the employer had to return her to the same or a similar position. The Court found that the employee was not entitled to any protections under the FMLA because she exceeded the 12 weeks provided for under the statute, which offers 12 weeks of job protection, and no more. The regulations function to provide the employee with more job-protected leave when the employer fails to inform employees that they are using up their FMLA-covered leave. The Court found this aspect of the regulations to be "inconsistent with a fair reading of the FMLA." Therefore, in this respect, the regulations are invalid.

    --Santos v. Shields Health Group (D. Mass. 1998). After 15 weeks of leave in which an employee never provided a medical certification and never provided a definite return to work date, she was terminated from her employment. She sued her employer alleging that it had failed to provided adequate notice of her rights and responsibilities (such as certification and providing an expected return to work date). The court held that even if we give the employee the benefit of the doubt, and assume that the employee had a serious health condition that entitled her to FMLA leave, there was no interference with her rights under the statute. She was entitled to 12 weeks of leave with job protection, and she received it. She was indisputably unable to perform her job 15 weeks after starting her leave, so even if she had been notified of her rights and responsibilities, reinstatement would not have been possible after 12 weeks.

    --Sherry v. Protection, Inc. (N.D. Ill. 1997). An employee asked for time off from work to care for his father, who had been diagnosed with terminal liver cancer. His first two requests were denied, but a month later, he again asked for and this time received time off from work. His employer never designated the leave as "FMLA leave" or provided the employee with any information about his rights and responsibilities under the FMLA. The employee did not report to work until two weeks after his father's death. The employer demoted him, claiming that the employee had "forfeited" his rights under the FMLA by failing to return to work for two weeks after the FMLA -covered leave had ended (i.e., the serious health condition of his father, which by definition ended with his father's death). The Court found against the employer, noting that it was the employer's duty under the regulations to provide the employee with written guidance as to his rights and responsibilities. Having failed to do so, the employer may not penalize the employee for failing to uphold any of the responsibilities that should have been included in such written guidance.

    C. Employee Failure to Give Notice or Request Leave



    Employees must give employers enough information about the need to take

    FMLA leave that a reasonable employer understands that the employee's need for leave is due to an FMLA-qualifying reason.

    --Szabo v. Trustees of Boston University (D. Mass. 1998). An employee's pregnancy ended in a miscarriage and she subsequently informed her employer that she was "thinking of taking some time off." She then took two weeks off, but never told her employer about her miscarriage. After two weeks, still unaware of the miscarriage, her employer contacted her to tell her that she should return to work. The employee did return to work at that time, at the same salary and same position as before her miscarriage. Six months later, the employee was terminated for excessive absenteeism, including the two weeks following her miscarriage. The employee sued claiming that her absence due to the miscarriage was protected by the FMLA. The employer defended by pointing out that the employee never told anyone at work she had had a miscarriage, and that the employee had given insufficient notice for the employer to apprehend that the employee had requested or required FMLA leave. The Court agreed, noting that the test was whether the information given to the employer was "sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition." Here, the employee's statement that she was "thinking of taking some time off' was not "sufficiently concrete or specific."

    --Byers v. Toyota Motor Manufacturing (E.D. Ken. 1997). An employee voluntarily admitted himself into a hospital for treatment of depression. He remained there for nine days and did not call his employer until the day after he left the hospital. Meanwhile, pursuant to a no-call, no-show policy that clearly stated that three days' absence with no communication from the employee was cause for termination, the employer had terminated the employee after the third day with no word from the employee. The employee argued that the termination violated the FMLA because his absence was due to a serious health condition. The Court disagreed and held that the employer was not required to grant an employee FMLA leave "when it does not learn of the need for leave until after termination." (emphasis in original) At the same time, an employee need not request or desire a leave of absence under the FMLA for the employer legally to place the employee on FMLA leave. If the employee is eligible for FMLA leave and cannot perform his or her job due to a qualifying reason (for example, his or her own serious health condition), the employer may place the employee on a leave of absence and count the time toward the FMLA allotment of 12 weeks.

    --Harvender v. Norton Co. (N.D.N.Y. 1997). A pregnant employee did not wish to stop working during her pregnancy. Nevertheless, her physician provided her employer with a note stating that she could not work with chemicals during her pregnancy. Working with chemicals was a key part of the employee's job. The employer placed her on FMLA leave. The plaintiff argued that placing her on FMLA leave involuntarily was a violation of the Act. The Court found the lack of a request for FMLA leave to be "irrelevant" and granted summary judgment for the employer.

    D. Evolving Concepts of FMLA Violations

    Some recent decisions have provided welcome clarification of what constitutes or does not constitute -an FMLA violation.

    --Gunnell v. Utah Valley State College (lOth Cir. 1998). An employee claimed that she was terminated for taking leave covered by the FMLA. She was unable, however, to provide evidence that her termination was not due to other reasons, as the employer asserted. The court emphasized that "an employee who requests FMLA leave would have no greater protection against his or her employment being terminated for reasons not related to his or her FMLA request than he or she did before submitting the request." Unless the employee can show that the termination was "because of her FMLA request," the court must conclude that "any reason for terminating [her] employment would not involved FMLA, and consequently that statute can offer [the employee] no relief."

    --Herman v. Princeton City Schools (S.D. Ohio 1997). An employer illegally "interfered" with its employees FMLA rights when it failed to advise them of those rights as required by the DOL's regulations, including the right to maintain health benefits at the same cost to the employee. The employees were entitled to reimbursement for the employer's share of their health insurance premiums, which they had paid during their leave, as well as liquidated damages (i.e., double damages), as well as reasonable attorneys' fees and costs. The Court also issued an injunction against future interference.

    See Harvender v. Norton Co. (N.D.N.Y. 1997) above for a description of a case in which putting an employee on involuntary FMLA leave is not a violation of the FMLA.

    --Duckworth v. Pratt & Whitney (1st Cir. 1998). An employee took FMLA-covered leave in 1994. In December 1194, he was laid off. On a form regarding his "rehire" status, a supervisor wrote that his attendance was "poor." In 1996, the former employee applied for another job at Pratt & Whitney but did not get it. He sued, alleging that he did not get the job because of the "poor" attendance rating, which was based entirely on absences that were protected by the FMLA. The employee argued that this alleged basis for the failure to rehire amounted to "interference" with his FMLA rights. The lower court dismissed the case on the grounds that the FMLA protects the rights of "employees" to be free from interference, but not former employees. The First Circuit Court of Appeals reinstated the case, reasoning that the term "employees" should be read broadly -in the spirit of other, similar cases decided under Title VII -to include former as well as current employees. Thus, the former employee had a right to proceed with his suit and attempt to prove that failure to rehire was illegal "interference."

    E. Courts' Rejection of Portions of the Department of Labor Regulations

    In some recent cases, courts have rejected as invalid particular sections of the U.S.

    DOL regulations. For example:

    --Seaman v. Downtown Partnership of Baltimore (D. Md. 1998). An employer told an employee she could take FMLA leave even though she did not meet the 12-month and 1250-hour eligibility requirements. While she was on leave, the employer contacted her and told her that her job was "in jeopardy ." The job was later eliminated. The employee sued, citing a DOL regulation that provides that once an employer confirms an employee's eligibility for FMLA leave, "the employer may not subsequently challenge the employee's eligibility." (See 29 C.F.R. § 825.110(d).) The court found this section of the regulations to be invalid because it "directly contradicts" the eligibility requirements as set forth by Congress in the statute itself. In short, Congress did not intend to give employees who did not meet the 12-month and 1250- hour requirements substantive rights under the FMLA.

    See Cox v. Autozone, Inc. (M.D. Ala. 1998) above for a description of a case in which a Court found that the U.S. DOL regulation providing employees with additional leave when employers fail to designate a leave of absence as FMLA leave were invalid because they were inconsistent with the language of the statute itself. Similarly, see Santos v. Shields Health Group (D. Mass. -t 1998) above for a description of a case in which the court held (similarly to that in Cox) that a technical violation does not render an employer liable to an employee who received her 12 weeks of leave but was unable to return to work at the end of the job-protected 12 weeks.

    --Cline v. Wal-Mart Stores (4th Cir. 1998). An employee with five day of paid vacation time accrued sought to take FMLA leave. The employer failed to inform an employee before the commencement of his leave that his accrued vacation time would be used up during his FMLA leave. The Court found that the employer must provide the employee with 12 weeks of unpaid leave followed by five days of vacation, in effect giving the employee 13 consecutive days off. Because the employee had returned to work after the expiration of 12 weeks but before the 13th week was up, he was entitled to restoration to the same or a similar job.

    F. Other Recent Cases

    A federal court in Maine has ruled that it is for the jury to decide whether or not reinstatement to a position with different duties and/or on a different shift is restoration to an "equivalent" position after FMLA-covered leave.

    --Watkins v. J & S. Oil Co. (D. Me. 1997). Before his first FMLA leave, the employee was a station manager. He was restored to that position after taking a five-week leave following a heart attack in 1994. Several weeks later, he suffered another heart attack and underwent surgery .During his FMLA- covered leave, the employer notified him that he was being replaced as station manager. Over the next few weeks, the employer offered him several alternative positions. The Court found that, as a matter of law, replacing the employee as station manager in and of itself did not subject the employer to liability. Beyond that, it was for the jury to decide whether he had been properly restored to "an equivalent" position.

    Employers need not count any hours except those actually worked toward the 1250 hours needed to qualify for FMLA leave.

    --Clark v. Allegheny University Hospital (E.D. Pa. 1998). An employee was terminated for excessive absenteeism. He sued, claiming that many of his absences were FMLA-covered due to his own serious health condition and his need to take leave to take care of his son, who had a chronic serious health condition. The employer argued that he had worked only 1,03.7 of the required 1,250 hours and therefore had no rights under the FMLA. The employee argued that both the time off due to his own or his son's serious health conditions and the time off due to disciplinary suspensions should have counted toward meeting the 1,250 hour level. The Court disagreed with the employee. Neither paid nor unpaid leave is included in calculating the required hours of service under the FMLA, the Court held. Employers should count actual days worked, and not medical leave, vacation days, holidays, sick days, personal days, days of suspension, or any other time off from work.

    An employee's failure to comply with an employer's request for a second certification of the employee's alleged serious health condition may permissibly result in the denial of restoration to the same or a similar position or termination.

    --Diaz v. Fort Wayne Foundry Corp. (7th Cir. 1997). The employee asked for FMLA leave due to his bronchitis. His physician then submitted a certification form stating he needed FMLA leave due to irritable bowel syndrome, hiatal hernia, gastroesophageal reflux, and a duodenal peptic ulcer. Understandably suspicious, since none of these conditions appear to be related to "bronchitis," the employer asked for a second certification. The employee failed to show up for the scheduled examination for the purposes of the second certification. The employee did not deny that the company had "reason to doubt the validity of the certification," as required by the regulations, but failed to appear for the required examination. " An employee who fails to cooperate with the second-opinion process under [the FMLA] loses the benefit of leave under [the FMLA]." Once the employee missed the appointment with no explanation, he as " A WOL and could not invoke the FMLA to avoid discharge." The "fit for duty" certificate provision of the FMLA recently came under scrutiny in a Massachusetts case.

    --Albert v. Runyon (D. Mass. 1998). An employee took leave under the FMLA due to clinical depression which she alleged was the result of sexual discrimination and harassment at her employer. After her treating psychologist released her to work with the caveat that she be free from discrimination and harassment, the employer informed the employee that the psychologist's certification was inadequate to enable the employer to assess her ability to work, and that she had to undergo an examination with a physician selected by the employer. She refused, and when she was not reinstated, she sued, alleging that her psychologist's fit for duty note was enough pursuant to the U.S. DOL regulations, which do not authorize employers to seek second opinions for fit for duty certifications. The court agreed, holding that employers must rely upon the employee's own treating health care providers' evaluations regarding fitness to return to work.

    --Porter v. U.S. Alumoweld Co. (4th Cir. 1997). In contrast to the Albert v. Runyon case described above, the Fourth Circuit Court of Appeals ruled that an employer could require an employee returning from FMLA leave taken due to back surgery to submit to an examination prior to restoration. The key difference appears to be that in the Fourth Circuit case, the employer had grounds under the Americans with Disabilities Act to request such an examination.

    Courts have fairly universally found that the FMLA does not provide for compensatory or punitive damages. Recently, however, a court clarified that damages for the "loss of job security" could be included in the damages called "other compensation" available under the FMLA :

    --Lloyd v. Wyoming Valley Health Care System, Inc. (M.D. Pa. 1998). An employee returning from FMLA leave was placed in a similar job with thesame pay, but different supervisory duties. After a workplace injury requiring additional leave, the employee was placed in a third position with the same pay but different duties. Six months after the second return to work, the employee's compensation scheme was altered to a base salary with an incentive schedule. The result of the switch was a decrease in pay for the employee. He sued under the FMLA, alleging that the phrase "other compensation" in the FMLA's damages section included both compensatory damages for alleged emotional distress and damages for the loss of economic security represented by the switch in compensation plans. The court disagreed regarding emotional distress damages and held, as have other courts, that such damages are not available under the FMLA. The court went on to hold in an apparent case of first impression that damages for the loss of economicsecurity were available if the employee could prove that he had acquired the right to such security before he went out on FMLA leave.


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