The Journal of The DuPage County Bar Association

Back Issues > Vol. 22 (2009-10)

Navigating the Maze of the Family and Medical Leave Act
By Kristin M. Case

Even if one does not typically practice employment law, Family and Medical Leave Act ("FMLA") issues arise in a variety of cases—including worker’s compensation, Social Security, employer or corporate policy planning and training and benefits administration, just to name a few. Because of its wide-reaching breadth, it is useful for lawyers practicing in many areas of law to have at least a working knowledge of the FMLA.

The FMLA is one of the more nuanced employment laws and, because of that, is one of the most difficult to explain to clients. At times, it can even be seen as counterintuitive. Procedurally, the law contains so many technicalities (most written into the regulations promulgated by the Department of Labor), that employees and employers oftentimes work themselves into a frenzy trying to understand their rights and obligations under the Act. Yet, an employer must strictly comply with the Act’s regulations or possibly face a potential claim for FMLA interference. Some courts, including the 7th circuit, have found interference claims to be strict liability claims, which means intent is irrelevant when a violation is present and liability is automatic.1 Likewise, for employees, the failure to abide by the Act’s obligations can result in a complete denial of leave and/or termination from their job as a result of unexcused absences. These potential client risks, alone, should be an incentive to become versed in the FMLA.

Who is Covered by the Act?

One would assume that determining coverage under a federal statute would be relatively simple. Not so when dealing with the FMLA. The FMLA applies to private employers who employ fifty or more employees within a 75 mile radius for at least 20 weeks of a calendar year.2 The definition of "employees" for purposes of calculating employer coverage will oftentimes include part-time and/or temporary employees depending upon how many weeks those employees work. This calculation may also include independent contractors, if the employer has mischaracterized them, as many employers either accidentally or intentionally do.3

Additionally, attorneys representing either employees or employers should explore whether the employer is part of a joint employment or integrated employment relationship.4 If so, employees employed at unrelated companies could be considered in the coverage calculation. Attorneys are oftentimes, understandably, unaware of this nuance and do not advise their clients accordingly.

Because of the complicated nature of the Act’s calculations, many attorneys advise their clients that the client is not covered by the Act and/or not entitled to the Act’s protection when, in fact, it is. In my experience, it’s also not unusual for a client to assume without the advice of an attorney that they are not covered by the FMLA when in actuality they are. Failure to assist your client in correctly calculating coverage can lead to enormous liability for an employer and enormous loss of benefits for an employee. On the flip side, some employers assume they are bound by the Act and offer leave when they otherwise would not have to do so. Courts have held that when an employer accidentally or incorrectly offers FMLA leave or fails to tell an inquiring employee that it is not a covered employer, that such offering or omission can create a contractual obligation to provide the leave or can estop the employer from denying leave even though the statute does not apply to them.5

It bears noting that the definition of an "employer" also includes any person acting directly or indirectly in the interest of a covered employer.6 This means that third-party administrators retained by companies to administer FMLA benefits are oftentimes also a liable party and could be jointly named in a lawsuit. Indeed, from a Plaintiff’s perspective, the administrator should be named in an FMLA suit in any event as the employer may try to deny intent based upon the administrator’s involvement. Finally, with respect to public entities, the Act also applies to all public agencies regardless of their size.7

Determining employee eligibility under the Act is almost as complicated as determining employer coverage. An employee becomes entitled to the protections of the Act once she has worked for the employer for one year and worked at least 1250 hours during that year.8 However, questions arise when calculating the year of service requirement in that the required twelve months need not have been consecutive months. In fact, intermittent periods of employment for up to seven years will be calculated together to determine the one year of service requirement. If the break in service was seven or more years, then the preceding period of employment does not need to be taken into account in calculating the one-year service requirement.9 There is, of course, an exception and that is when the seven year or more break in employment was caused by military service.10

Additionally, an employee need not have actually worked a full year in order to meet the 12 month requirement. Instead, in determining whether an employee has "worked" for a "year", the Act provides that if an employee was maintained on the payroll for any part of a week, including any periods of paid or unpaid leave, sick or vacation time, that week counts as a full week of employment regardless of whether or not the employee actually worked all or any of the days during that week.11

As for calculating the 1250 hours of service, all work that "the employer knows or has reason to believe . . . is being performed" counts toward the threshold requirement.12 Thus, whether or not an employer is paying an employee for hours worked, if it knows or should know that the employee is working then those hours will count toward FMLA.13

Obligations and rights under the Act

An employer bound by the Act has an affirmative duty to post a notice apprising employees of their FMLA rights.14 A copy of an approved notice poster may be obtained for free from the Department of Labor. Such notice must also be included in any company handbooks.15 An employer that willfully violates the posting requirement may be assessed a civil penalty up to $110 for each separate offense.16

In addition to posting requirements, the regulations and the cases interpreting the regulations make it clear that once an employer knows or should reasonably know that the employee has a condition which may require FMLA leave, the employer has an affirmative obligation to apprise the employee of his or her rights to leave under the Act.17 This means that an employer may be responsible for providing notice of a right to leave even when an employee has not requested it if the employee is exhibiting symptoms or conduct from which the employer could infer a need for leave. Many employers have a difficult time believing that the Act places this type of burden upon them but it does. Consider, for example, the case of Byrne v. Avon Products in which the 7th Circuit held that a dramatic change in behavior (in this case sleeping on the job after years of positive performance) may constitute notice of a medical problem sufficient to trigger the employer’s obligations under the Act.18

An employer covered by the FMLA must provide up to 12 weeks of unpaid leave to an eligible employee to: 1) care for a newborn child; 2) care for a newly adopted child; 3) care for a close family member who has a serious health condition; 4) care for one’s own serious health condition; 5) care for a family member that has a qualifying exigency that arises from active military service.19 Note that Subsection 5 is new and was added as part of 2009 revisions to the regulations. Nothing in the Act prohibits an employer from providing pay during an FMLA leave but the Act does not require it. Oftentimes, in the case of an employee’s own serious health condition, an employer-sponsored disability policy may provide partial pay during the period of leave. Benefits provided under a disability policy are not in any way connected to the right to FMLA leave. Thus, do not assume that because your client qualifies for FMLA leave that she would also qualify for benefits under a disability plan. The definition of "disabled" under most disability plans is typically much harder to meet than that of serious health condition under the FMLA.

In addition to the unpaid leave, the Act also requires that the employee’s health insurance be maintained at the active employee rate. Since the employee is not receiving pay during this time, an employer can still, nevertheless, require the employee to submit payment of the monthly employee contribution.20

An employee requesting leave has some obligations as well, although not as many as the employer. The FMLA requires qualified employees seeking leave to provide advance notice of the need for leave when foreseeable and must provide the employer with an appropriate certification, if such is requested.21 Once an employee requests leave, employers have five business days to request a medical certification.22 The request must be made in writing. Attorneys advising employers to request such a certification should ensure that the employer applies the certification requirement uniformly to all employees seeking leave so as to not give rise to disparate treatment claims. Employees must generally furnish the appropriate certification within fifteen calendar days unless it is not practicable to do so despite diligent, good faith efforts.23 Employees can run into problems at this stage of the process if the employee’s doctor is not mindful of these deadlines. It is important that employees and/or their attorneys, if necessary, aggressively pursue this certification from the care provider and inform the doctor, in writing, that the employee could be denied leave and ultimately terminated if such form is not completed within the requisite period of time.

What is a serious health condition?

It is first important to note that the definition of serious health condition is in no way related to any other legal definitions of disability or incapacity, such as the definition of "disability" under the Americans with Disabilities Act or the definition of "handicap" under the Illinois Human Rights Act. Both employees and employers often assume that there is a relationship between these various laws, however, there is none.

A "serious health condition" under the FMLA is as an "illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider."24 Remember, the FMLA applies to employees’ own conditions and also to employees’ family members’ conditions. Thus, one must make the serious health condition assessment for family members as well.

Inpatient care is, of course, easy enough to define but what constitutes continuing treatment? That question, itself, is enough to drive attorneys crazy. Of course, continuing treatment would cover such situations as an employee undergoing radiation or chemotherapy. But "continuing treatment" is also defined to include so much more such as:

1) a period of incapacity of more than three consecutive days that also involves two or more visits to a health care provider within 30 days of the first day of incapacity or treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider. This broad definition could include relatively minor conditions such as strep throat and bronchitis.

2) any period of incapacity due to pregnancy, or for prenatal care.

3) any period of incapacity or treatment for a "chronic health condition" which requires at least bi-annual visits to a health care provider. An example of this could be a thyroid condition which, while controlled by medication, still, nevertheless, requires frequent blood tests.

4) permanent or long-term conditions for which treatment may not be effective. In this instance, the employee or family member must be under the general care of a health care professional but does not have to see them regularly. Examples would include Alzheimers, Multiple Sclerosis or the terminal stages of a disease.25

While the regulations provide employees wide latitude in arguing that a condition would qualify for FMLA leave, the regulations also provide us with some examples of conditions that, generally, do not entitle an employee to leave such as: routine physical examinations, eye examinations, dental examinations, and a regimen of continuing treatment that only, without more, includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; and bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider.26

Intermittent leave

In addition to consecutive periods of leave, the FMLA also allows for leave to be taken intermittently except in situations where leave is sought for the birth of or placement of a child. For a detailed explanation as to how to the time increments must be calculated and assessed see 29 C.F.R. 825.205. From an employee perspective, this is great in that it permits employees leave for doctor’s visits and treatments without forcing them to lose even a full day of pay or 8 hours of leave. This allows employees with chronic conditions to stretch the FMLA leave much longer than the 12 weeks. From an employer perspective, intermittent leave can present an administrative nightmare.

Reinstating an employee after leave

Once an employee is able to return to work, an employer may require that the employee present a certification of fitness to return to work when the absence was caused by the employee’s own serious health condition.27 The employer may delay reinstatement until such certification is provided. As with the certification of a serious health condition, employers should develop a return-to-work certification policy and apply it uniformly to all returning employees.

A returning employee who has presented proper certification must be returned to the same or equivalent position following the expiration of her leave.28 There is one exception to this right to reinstatement and that is when the person taking leave is a "key employee."29 If a key employee is involved, the leave must be granted but reinstatement can be denied. Attorneys advising employers to assert the key employee exception should do so with extreme caution. In order for the exception to apply, the alleged "key employee" must be salaried and one of the top 10% highest paid employees within the company. The employer must be also able to show that restoring the employee would cause "substantial and grievous economic injury" to the employer’s operations.30 That, obviously, is an extremely high hurdle to surmount.

If an employer decides to proceed down the dangerous path of denying reinstatement based upon key employee status, it must provide the employee written notice that it intends to do so at the time the leave is requested or within a reasonable time thereafter. Providing notice of key employee status after the leave has been used or when reinstatement is requested will be too late and the employer will likely have waived key employee exception.31

Obligations and protections following reinstatement
Finally, an employer may not discriminate or retaliate against an employee who has taken or who has requested FMLA leave. Moreover, an employer may not consider the use of FMLA as a negative factor whatsoever in any employment decision, including but not limited to assessing performance, promotion, firing, measuring sales or the ability to meet quotas, awarding bonuses or promotions. 32

ConclusionThis article provides an overview of the FMLA rights and obligations thereunder. However, this information is by no means exhaustive, and I would suggest reviewing the Department of Labor’s regulations, which can be found at The regulations, while extremely detailed and oftentimes maddening, do provide explanations in a conversational and common sense tone.

1 Kauffman v. Federal Exp. Corp., 426 F.3d 880, 884-85 (7th Cir. 2005).

2 29 CFR 825.104.

3 The test adopted by the regulations for determining whether or not independent contractors should be counted in calculating employees is the "economic realities" test.

4 29 CFR 825.104(c).

5 In Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579 (7th Cir. 2000) the Seventh Circuit recognized that a Plaintiff may assert an estoppel claim when an employer’s silence regarding FMLA ineligibility causes the employee to rely to his detriment.

6 29 CFR 825.104(d).

7 Id.

8 29 CFR 825.110.

9 29 CFR 825.110 (b)(2)(i)

10 Id.

11 29 C.F.R. 825.110(b)(3)

12 29 C.F.R. § 785.12.

13 Erdmann v. Nationwide, —-F.3d.—2009 WL 3018116 (3rd Cir. Sept. 23, 2009)

14 29 C.F.R. 825.300(a)

15 29 C.F.R. 825.300(a)(3)

16 29 C.F.R. 825.300(a)

17 29 C.F.R. 825.300(4)(b)

18 Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003).

19 29 C.F.R. 825.110.

20 29 C.F.R. 825.210.

21 29 C.F.R. 825.305(a)

22 29 C.F.R. 825.305(b)

23 Id.

24 29 C.F.R. 825.113(a)

25 29 C.F.R. 825.115.

26 29 C.F.R. 825.113(c).

27 29 C.F.R. 825.312

28 29 C.F.R. 825.214

29 29 C.F.R. 825.217

30 29 C.F.R. 825.218

31 825.219(a)

32 29 C.F.R. 825.220(c)

Kristin Case is the founding Member of The Case Law Firm, LLC. Ms. Case has extensive experience representing clients in employment negotiations, before administrative agencies, including the Equal Employment Opportunity Commission and the Illinois Department of Human Rights, and throughout the litigation process both in state and federal courts. A large part of Ms. Case’s practice focuses on representing individuals with medical conditions and/or disabilities. Ms. Case received her Bachelor of Science in Journalism from Central Missouri State University and her J.D. from the University of Missouri.

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