BY Donald J. Spero, Esq.

A. Overview of the Act.

Which Employers and Employees are Covered by the Act.

Conditions Giving Rise to the Right to Family and Medical Leave.

Permissible Leave.

Employers’ and Employees’ Obligations.

Employment and Benefit Protection.

Enforcement.

Special Considerations for Employees of Local Educational Agencies.

Record Keeping Requirements.

Posting and Notification Requirements.

B. Recent FMLA Case Law Developments.

Required Notice to Employer.

Circumstances Giving Rise to FMLA Leave: Serious Health

Conditions and Family Leaves.

Individual Capacity Suits.

Right to Jury Trial.

Release of FMLA Claims.

Arbitrability of FMLA Claims.

Burdens of Proof.

Cases Involving Denial of FMLA Rights

Cases Involving Retaliation and Interfering With Employees’ FMLA Rights

Reinstatement after FMLA Leave.

APPENDIX E Department of Labor Poster in Spanish

THE FAMILY AND MEDICAL LEAVE ACT

Congress enacted the Federal Family and Medical Leave Act (the "FMLA" or the "Act") effective August 5, 1993 (February 5, 1994 if a collective bargaining agreement was in effect) based on its findings that there were various, significant family needs. These included the importance that parents be able to participate in early child rearing and a lack of employment policies to accommodate working parents forcing them to choose between job security and parenting. Congress also found that there was inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods. The stated goals of the Act include balancing the demands of the workplace with family needs, promoting economic security, promoting security of family and promoting the national interest in preserving family integrity. The Act has as its purpose allowing employees to take reasonable leave for medical reasons, for parenting and for the care of close relatives who have serious health conditions. Congress also intended to minimize the potential for employment discrimination on the basis of sex by providing in the FMLA that leave is available for medical reasons or family reasons on a gender-neutral basis.

Which Employers and Employees are Covered by the Act

To be covered by the Act, an employer must be engaged in commerce or in an industry affecting commerce and must employ 50 or more employees for each working day of 20 or more calendar work weeks in the current or proceeding calendar year. The Act gives the same broad definition to "employ" as the Fair Labor Standards Act. The term employ includes "to suffer or permit to work." The Secretary of Labor ("The Secretary") is vested with the power to enforce the FMLA. According to the regulations issued by the Secretary, the payroll method is used in determining the number of employees. Any employee whose name is on the employer’s payroll in any calendar week will be considered employed on each working day of that week and thus must be counted even if the employee does not receive compensation. 29 CFR §825.105(b). Employees on paid or unpaid leave including FMLA leave, leaves of absence or disciplinary suspension are counted for determining the number of employees of the employer under the FMLA as long as the employer has a reasonable expectation that they will return to active employment. 29 CFR §825.105(c). Employees on lay-off are not counted. Part-time employees are counted the same as full-time employees. They are considered to be employed each working day of any calendar week they are maintained on the payroll. An employer who his fewer than the required number of employees may elect to extend FMLA benefits to its employees. If it does so its obligation is contractual and not statutory. In Douglas v. E.G. Baldwin, 150 F.3d 604 (6th Cir. 1968) the court held that the federal courts do not have statutory jurisdiction to hear an FMLA suit by an employee of such an employer. The employee must sue for breach of contract and if there is no other basis for federal jurisdiction the action must be brought in state court.

The FMLA applies to public agencies without regard to the number of employees employed. A public agency is one that is so defined in §3(x) of the Fair Labor Standards Act, 29 U.S.C. §203(x). The government of the United States, of a state or political subdivision of a state or of any agency of the United States, state or political subdivision of a state are public agencies.

To be eligible for the leave provisions of the Act an "eligible employee" must have worked at least 12 months for the employer from whom the leave is requested. The 12 months need not be consecutive months. If an employee is on the payroll for any part of a week, the week counts as a week of employment. 29 CFR§825.110(b). The employee must also have worked at least 1,250 hours during the preceding 12 month period. In determining the number of hours worked, the same rules are applied as determining hours worked under the Fair Labor Standards Act. In other words, work "off the clock" which the employer suffers or permits the employee to work counts as hours worked. However, periods when the employee is not actually working are not counted as part of the 1,250 hours. Thus, the employee does not get hours credit for paid sick leaves, vacations or holidays. See Robbins v. Bureau of National Affairs, 896 F. Supp. 18 (D.D.C. 1995). The determination of the number of hours worked and whether the employee has worked for at least 12 months is made as of the date leave commences. However, if the employee works at a work site that employs less than 50 employees and the total number of employees employed by the employer within 75 miles of the work site is less than 50, the employee is not eligible for leave under the Act.

Conditions Giving Rise to the Right to Family and Medical Leave

There are four circumstances under which an employee is entitled to leave under the Act:

The statute broadly defines a son or daughter as a biological, adopted or foster child, a stepchild, a legal ward or child for whom the employee stands in loco parentis. The child must either be under 18 years of age or incapable of self-care because of a mental or physical disability. One is incapable of self-care if the individual requires active assistance or supervision to provide daily self-care in three of more of the "activities of daily living" or "instrumental activities of daily living." 29 CFR §825.113(c)(1). The activities of daily living include caring appropriately for one’s grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence and using telephones and directories. Physical or mental disability means an impairment that substantially limits one or more of the major life activities of the individual as that term is described in the federal regulations relating to the Americans with Disabilities Act ("the ADA"), 29 CFR 1630.2(h)(i) and (j).

A parent within the meaning of the statute is a biological parent or an individual who stood in loco parentis to the employee when the employee was a son or daughter. Persons who are in loco parentis are those who have day-to-day responsibilities to care for and financially support a child. 29 CFR §825.113(c)(3). A biological or legal relationship is not necessary. A spouse is a husband or wife as defined or recognized under state law for purposes of marriage in the state of the employee’s residence. 29 CFR §825.113(a).

A serious health condition within the meaning of the FMLA includes an illness, injury, impairment or physical or mental condition that involves inpatient care. It also includes conditions requiring continuing treatment by a health care provider where certain circumstances exist. Where there is a period of incapacity of more than three consecutive calendar days a serious health condition exists. Absences two or more times for treatment by a health care provider relating to a condition during which the employee was incapacitated for more than three days are also regarded as being for serious health conditions. Absences subsequent to the absence of more than three days are also covered by the FMLA where there is a treatment by a health care provider on at least one occasion resulting in a regimen of continuing treatment under the supervision of the health care provider. The Regulation delineating what constitutes a serious health condition is found at 29 CFR §825.114. It is a good practice to consult that regulation when there is any question as to whether a serious health condition exists. For convenient reference it is set out in full in Appendix "A."

Also included under the definition of serious health conditions are periods of incapacity, due to pregnancy or for pre-natal care. FMLA leave is also required for periods of incapacity or treatment of a chronic serious health condition which requires periodic visits for treatment by a health care provider, which continues over an extended period of time and which may cause episodic continuing periods of incapacity. Examples of the latter type of incapacity include asthma, diabetes and epilepsy.

The regulations also include under the definition of a serious health condition certain incapacities for which treatment may not be effective where the employee or family member is under the continuing supervision of a health care provider. Incapacity due to Alzheimer’s disease or a severe stroke or the terminal stages of a disease would be included in this definition.

Periods of absence for multiple treatments by a health care provider or on referral by a health care provider may also be serious health conditions. Examples would be restorative surgery after an accident or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days if it were not treated. Some examples are chemotherapy or radiation treatment for cancer, physical therapy for severe arthritis and dialysis for kidney disease.

Cosmetic treatments such as plastic surgery are not serious health conditions unless inpatient hospital care is required or unless complications develop. The Regulations exclude from the definition of serious health condition, the common cold, flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontic problems and periodontal disease unless complications develop. Under some circumstances, substance abuse may be regarded as a serious health. Leaves that are required for absence due to the employee’s use of the substance rather than for treatment are not serious health conditions.

An employee will be considered unable to perform the functions of the position where the health care provider finds that the employee is unable to perform any one of the essential functions of the employee’s position within the meaning of the Americans with Disabilities Act. What constitutes an essential function of a job can be a highly debated factual issue. Employers should consider formulating job descriptions. The descriptions may help when the issue of what is an essential function comes up under the FMLA or the ADA. Absence from work to receive medical treatment for a serious health condition is considered being unable to perform the essential functions of the position during the absence for treatment.

Leave because of a need to care for a close family member must be granted whether it encompasses either physical or psychological care. Such a need exists because of a serious health condition where a family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety or is unable to get to the doctor without assistance. The need for care of a close family member may also include providing psychological comfort which would be beneficial to the family member. 29 CFR §825.116(a).

Permissible Leave

An eligible employee is entitled to a total of 12 working weeks of FMLA leave during any 12 month period based on the occurrence of any of the four previously mentioned events. Leave may be taken intermittently or on a reduced leave schedule for the care of a spouse, son, daughter or parent of the employee who has a serious health condition. Intermittent or reduced scheduled leave may also be taken if necessary because of the employee’s own serious health condition. Where a husband and wife are employed by the same employer, the aggregate leave permissible for birth, adoption, foster placement or care of a close relative may be limited to 12 weeks during any 12 month period. 29 CFR §825.202. No such limitation is placed on leave for an employee’s personal serious health condition.

An employer has four choices in determining the 12 month period in which the employee is entitled to 12 weeks of FMLA leave. The employer may designate (1) the calendar year, (2) any fixed 12 month leave year including a fiscal year or the year starting on the employee’s anniversary date, (3) a 12 month period measured forward from the date any employee’s first FMLA leave begins or (4) a rolling 12 month period, measured backward from the date the employee uses the FMLA leave.

Intermittent leave or leave on a reduced leave schedule may only be taken if there is a medical need for such a leave which can be best accommodated through an intermittent or reduced leave schedule. 29 CFR §825.117(a). Intermittent leave or a reduced leave schedule may be taken for the birth or placement of a child for adoption or for foster care only if the employer agrees to permit it. Intermittent leave is leave taken in separate blocks of time due to a single qualifying reason. 29 CFR §825.203(a). A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per week or per work day.

Intermittent leave may be appropriate where it is necessary for periodic medical appointments or treatment such as chemotherapy. A pregnant employee may take intermittent leave for prenatal examinations or for her own condition such as severe morning sickness. A reduced leave schedule may be taken by an employee who is recovering from a serious health condition and is not yet able to work a full work schedule. Where intermittent leave is taken over a period of time for the same reason the employee needs to establish eligibility only before the first absence. In Barron v. Runyon, 4 WH Cases 2d 1321 (E.D.Vi. 1998) an employee had worked the required 1,250 hours in the 12 months immediately preceding the commencement of his intermittent leave. However he had not worked the necessary number of hours before the beginning of each subsequent period of leave. The court found that he was eligible for the subsequent leave as he was eligible at the beginning at the intermittent leave. The court pointed to the regulation language under which an employee must have worked the required number of hours "... during the 12-month period immediately preceding the commencement of the leave." 29 CFR §825.110(a)(2)

An employee may take intermittent leave or leave on a reduced leave schedule in any time increment that is necessary. 29 CFR §825.203(d). The employer may not require the employee to take more FMLA leave than is necessary for the circumstances requiring the leave.

Employees are required to attempt to schedule their intermittent leave or reduced schedule leave in a manner so as not to disrupt the employer’s operations. Where an employee takes an intermittent or reduced schedule leave, the employer may assign the employee to an alternative position with equivalent pay and benefits temporarily, where it better accommodates the employee’s schedule. 29 CFR §825.117.

When an employee takes an intermittent or reduced leave schedule, the employee may only be charged with the amount of leave actually taken. 29 CFR §825.205(a). If an employee ordinarily works five days a week and takes one day off, that counts as one-fifth of a week of FMLA leave. If that employee worked an eight hour day and took four hours off, the employee would only be charged with one-tenth of a week of FMLA leave. Part-time employees entitlements are determined on a pro rata or proportional basis. For example, when an employee who ordinarily works 30 hours per week works only 20 hours on a reduced leave schedule, the ten hours of leave would count as one-third of a week of FMLA leave. Where an employee’s schedule varies from week to week, a weekly average of the hours worked over the 12 week period prior to the beginning of the leave is used to calculate the employee’s normal work week.

The FMLA does not require an employer to pay the employee during the allowable leave period. 29 CFR §825.207. However, the employee may elect to use accrued paid vacation leave, personal leave or family leave that the employer ordinarily provides as part of the FMLA leave. Alternatively the employer may require the employee to use these leaves during the 12 week leave period. Accrued paid vacation, personal or family leave may be substituted by the employee for unpaid FMLA leave if the leave is for the birth, placement of a child for adoption or foster care, or care of a close family member with a serious health condition. Where the leave is for care of a family member with a serious health condition or for the employee’s own serious health condition, the employee may elect to use accrued paid vacation leave, personal leave or medical or sick leave. 29 CFR §825.207(c).

Where the need for leave for birth, adoption or foster care placement or for the treatment of a serious health condition of the employee or a family member is foreseeable based on an anticipated date of the event, the employee must provide the employer no less than 30 days notice. If the qualifying event is to take place in less than 30 days, the employee is obligated to give the employer as much notice as is practicable. No specific form is required for the notification. It may be oral. The employee does not have to specifically invoke rights under the FMLA. The employee merely needs to state that leave is needed for some reason such as birth or adoption, care of a close family member or personal health reasons. The employer has an obligation to inquire further to determine if the leave is FMLA eligible. The employee has an obligation to furnish the employer sufficient information to enable the employer to determine whether the leave qualifies under the FMLA. Where the leave is FMLA eligible, the employer must designate it as such. The employer must give notice to the employee of whether or not the leave is allowable for FMLA purposes.

When an employer learns that an employee is taking vacation or other paid leave for FMLA eligible purposes the employer may designate it as FMLA leave. Notice that the employer has so designated the leave as FMLA leave must be given within two business days absent extenuating circumstances. 29 CFR §825.208(b)(1) In Cline v. Wal-Mart, 4 WH Cases 2d 1185 (4th Cir. 1998) the employer’s failure to clearly designate five days of paid vacation resulted in the employee being allowed 12 full weeks of FMLA leave in addition to the vacation days. The employer used a form advising employees that leave for medical reasons would be counted as FMLA leave, but the form did not advise them that vacation taken for medical reasons would be counted as FMLA leave.

The employer’s failure to advise the employee of the designation can have serious consequences. For example, failure to promptly notify the employee that the leave is not being allowed as FMLA leave may later prevent the employer from asserting that the employee was not eligible. See Robbins v. Bureau of National Affairs, supra, 896 F.Supp.. at p. 21 and 29 CFR §825.110, the so-called "promissory estoppel regulation."

The promissory estoppel regulation provides that if an employer fails to advise the employee whether the employee is eligible prior to the date on which the leave is to commence the employee will be deemed eligible. However, the court in Wolke v. Dreadnought Marine, 3 WH Cases 2d 1377,1380 (E.D. Va. 1997) held that this regulation was invalid as it "...purports to transform employees who are ineligible under the FMLA statute into eligible employees." The court ruled that the Secretary had exceeded his authority and usurped Congress’ role by attempting to confer eligibility on an employee who is not eligible under the statute. The Wolke court ruled that an employee who had not worked sufficient hours to be eligible for FMLA leave was not entitled to have his leave so counted where the employer had failed to notify him of his FMLA ineligibility. In Cox v. Autozone, 4 WH Cases 2d (DC M Ala 1998) the court applied similar reasoning where an employee was absent for 15 weeks, 13 of which were paid disability leave. The employer failed to inform the employee in advance that it was counting her paid disability leave against her FMLA entitlement as required by the regulation. The court found that a regulation that expands leave beyond the 12 weeks provided in the statute by congress was invalid.

The Department of Labor has developed a form that may be helpful to employers in meeting their obligations to designate the leave. A copy is attached as Appendix "B."

Where an employee seeks leave to care for a close family member with a serious health condition or for the employee’s own serious health condition, the employer may require a certification by the health care provider of the eligible employee or the employee’s relative. The employer may also require an eligible employee to obtain a re-certification from time to time on a reasonable basis. Where an employer requires a certification the employee must be notified of that fact in advance. 29 §825.301(b)(1)(ii) At a minimum, the certification must provide the following information:

29 CFR §825.306. See Appendix "C" for a copy of the certification form the Department of Labor has prepared for optional use

The FMLA provides that a health care provider is a doctor of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctor practices. The statute also allows the Secretary of Labor to designate as health care providers other persons providing health care services. The Secretary has designated a number of people and professions as health care providers where they are licensed by state law and by the laws of their respective states. The Secretary’s designation includes podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers and Christian Science practitioners who are listed with the First Church of Christian Scientists in Boston, Massachusetts. The Secretary has also designated any health care provider from whom the employer’s group health plan will accept a certification of the existence of a serious health condition to substantiate a claim for benefits. 29 CFR §825.118.

Where leave is requested to care for a close relative, the certification must contain a statement that such leave is necessary for the person’s care and will assist in the person’s recovery. Where intermittent leave or leave on a reduced schedule is needed for care of a close family member the certification must indicate the expected duration and schedule of the intermittent leave or reduced leave schedule. 29 CFR §825.306(b)(5)(i)(b).

Where intermittent leave or leaave on a reduced leave schedule is requested for medical treatment, the certification must provide an estimate of the probable number of treatments and interval between treatments if known It must also indicate the period required for recovery. 29 CFR §825.306(b)(3)(i)(B).

If the employer has reason to doubt the validity of the certification provided by the employee, the employer may require, at its own expense, that the employee obtain a second opinion from another health care provider who the employer approves or designates. 29 CFR §825.308. Such a health care provider may not be one who is employed on a regular basis by the employer. Where the second opinion conflicts with the opinion of the employee’s health care provider, the employer may require at its own expense that the employee obtain an opinion from a third health care provider which the employer and employee jointly designate or approve. Where an opinion is obtained from a third health care provider regarding the certified information, that opinion is binding on the employer and employee.

Before permitting an employee to return from leave for a serious health condition, the employer may require a certification from the employer’s health care provider that the employee is able to resume work providing there is no bar to such a requirement under a valid state law, local law or collective bargaining agreement relating to return to work of employees. The employer may only require a certification of ability to return to work where it has a uniform policy of doing so. 29 CFR §825.310.

Employers are not prohibited by the Act from periodically requiring the employee to report on his or her status and intention to return to work. 29 CFR §825.308.

An employee who takes FMLA leave must be returned by the employer to the position which the employee held prior to the commencement of the leave or to an equivalent position without loss of benefits, pay or other terms or conditions of employment. 29 CFR §825.214. The employer is not permitted to require the forfeiture of any benefits accrued by the employee prior to the commencement of the leave. However, the employer is not required to allow the employee to accrue seniority during the leave or to receive any right, benefit or position that the employee would not have received if the employee had not taken leave. 29 USC §2614(a)(3)(A) and (B).

In some circumstances, the employer may be relieved of restoring employment to certain highly compensated or "key" employees. 29 USC §2614(b). For the employee to be exempt from restoration, the individual must be among the highest paid ten percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed. Before the employer may deny restoration, the situation must fulfill three prerequisites:

While an eligible employee is on leave, the employer is required to continue coverage for the employee under any group health plan the employer maintains. The coverage must be maintained at the same level and under the same conditions that it would have provided the employee if the employee were not on leave. If an employee elects not to retain group health plan coverage while on FMLA leave, the employer must reinstate the employee to the plan without excluding pre-existing conditions or requiring a qualifying period, or a physical examination. 29 CFR §825.209(e).

If an employee on FMLA leave is more than 30 days late in paying the employee’s contribution for health insurance, the employer is no longer obligated to maintain that insurance. However, before dropping coverage, the employer must provide the employee written notice at least 15 days before coverage is to cease. The notice must advise the employee that coverage will be dropped on a specified date at least 15 days after the date of the notice unless payment is made. If an employer has a policy with a greater grace period than that allowed by the regulations the employer must apply the more lenient policy. 29 CFR §825.212.

If the employee fails to return after the leave to which the employee is entitled has expired, the employer may in some instances recover the premium that it paid for maintaining coverage during the leave. The employer may not recover these sums if the employee fails to return due to the continuation, recurrence or onset of a serious health condition of the employee or of a covered close relative. The employer may require certification from the health care provider that the employee is unable to return to work because of a serious health condition. 29 CFR §825.213.

Employers accused of violating the FMLA are subject to legal actions brought by employees on their own behalf as well as on behalf of other employees similarly situated. (The enforcement provisions of the FMLA are found at 29 USC §2617) An employee may sue for damages and for equitable relief such as reinstatement to employment or promotion. Suit may be filed in federal or state court. Employees may recover any compensation or other employment benefits lost as a result of a violation. If there has been no loss of compensation or benefits the employee may recover actual monetary losses sustained as a result of the violation, such as the cost of providing up to 12 weeks of care. The lost wages are subject to interest at the prevailing rate plus an additional amount equivalent to the actual damages as liquidated damages. If the employer is able to demonstrate that the violation of the Act was in good faith and that the employer had reasonable grounds for believing that it had not violated the Act, the court may eliminate the liquidated damages. It can be expected that in most cases liquidated damages will be awarded. In Nero v. Industrial Molding Corp., 167 F. 3d 921 (5^th Cir. 1999) the court held that "[e]ven if a trial court is satisfied that an employer acted both in good fait and reasonably, it may still award liquidated damages at its discretion in any amount up to that allowed by 29 U.S.C. §216(b)." (Quoting Mireles v. Frio Foods, Inc. 899 F.2d 1407, 1416 n.8 (5^th Cir. 1990). The court reasoned that "Doubling the award is the norm under the FMLA ..."

An employee can not recover consequential damages such as expenses in connection with finding another job or in an FMLA action. Nero v. Industrial Molding Corp., supra.

The limitation period for bringing an action under the FMLA is two years from the date "...of the last event constituting the alleged violation for which the action is brought."

Where the alleged violation is "wilful" the time limit is extended to three years. 29 USC §2617(c) (1) & (2) These are the same as the limitation periods in the Fair Labor Standards Act. Since most FSLA violations are found to be wilful, it is likely that most violations of the FMLA will also be found to be wilful. However in Moore v. Payless Shoe Source, Inc., 139 F.3d 1210 (8^th Cir. 1998) an FMLA action was held to be time barred where it was filled more than two years but less than three years after an alleged violation. The plaintiff’s failure to allege in her complaint that the violation was wilful defeated her right to argue that the longer limitation period was applicable.

The Secretary is empowered to receive, investigate and attempt to resolve complaints of violations of the FMLA in the same manner as the Secretary does so under the Fair Labor Standards Act. The Secretary may also file suit to recover the same damages as can be recovered by an employee. The Secretary may also seek injunctions to restrain violations of the FMLA, including the withholding of wages and benefits. The employee’s right to bring a suit terminates upon the filing of a complaint by the Secretary of Labor.

The Act covers employees of both public and private schools, without regard to the number of employees in the institution. There are, however, special provisions applicable to the school employees who are employed principally as teachers.

Where an eligible school employee employed primarily in an instructional capacity applies for intermittent leave or leave on a reduced leave schedule for family care or personal health reasons that is foreseeable and the leave would be greater than 20 per cent of the total number of working days in the school term, the school may require the employee to take leave for a specified duration which is no greater than the duration of the planned medical treatment. Alternatively the school may require the employee to transfer to a temporary position for which the employee is qualified, which is equivalent in benefits and which better accommodates the leave than the regular position of the employee.

29 CFR §825.601 (a)(1)(i) & (ii)

Where a school employee employed primarily in an instructional capacity takes leave more than five weeks before the end of the school term, the school may require the employee to continue the leave to the end of the term if the leave is at least three weeks in duration and return to employment would take place in the final three weeks of the term.

29 CFR §825.601(a)(1)

Where a school employee employed primarily in an instructional capacity takes leave for birth, adoption, foster placement or family care less than five weeks before the end of the term, the school may require the employee to remain on leave until the end of the term if the leave is greater than two weeks in duration and the return to employment would take place during the last two weeks of the term. 29 CFR §825.602(a)(2)

If a school employee employed primarily in an instructional capacity takes a leave for birth, adoption, foster placement or family care of greater than five days less than three weeks prior to the end of the term, the school may require the employee to continue to remain on leave until the end of the term. 29 CFR §825.602(a)(3) The time between semesters when the teacher would not have been working are not counted against the teacher’s FMLA leave. 29 CFR §825.601(a) Thus where a school employee is on leave at the end of the school year and remains on leave at the beginning of the following semester, the leave is considered consecutive and not intermittent.

The FMLA requires employers to keep records relating to their compliance with the Act and to retain those records for no less than three years. It is not too likely that the employer will be sued for violating the record keeping provisions of the Act, but the failure to maintain the records may in some instances involve an adverse inference toward the employer’s position if a suit is brought alleging a violation of the substantive requirements of the Act.

The record keeping requirements which are those required under §11(c) of the Fair Labor Standards Act can be found at 29 CFR §825.500. In summary, the employer must maintain payroll data identifying employees, hours worked, wage data including deductions from wages. FMLA leaves taken by individual employees must also be recorded. If the leave increments are less than a full day the hours of leave should be recorded. The employer must also retain any written notices of leave furnished by employees, documents describing employment benefits, premium payments of employment benefits and records of any disputes with employees regarding designation of leave.

The Act requires the employer to post in a conspicuous place where notices to employees and applicants are customarily posted, the notice prepared by the Secretary of Labor summarizing the pertinent provisions of the FMLA. An employer who willfully violates the posting provision is subject to a civil penalty of up to $100.00 for each separate offense. A copy of the notice in English is attached as Appendix "D" and in Spanish as Appendix "E." Copies are available from the Department of Labor. The telephone number of the Miami Office of the Department of Labor is (305) 653-7414. There is also an FMLA information line, 1-(800)-959-FMLA.

An employer is not subject to a damage suit for failing to post the notice. However, failure to post may excuse the employee from some of his or her obligations under the Act, because the employer has failed in its duty to inform the employee. A non-posting employer may be prevented from taking adverse action against an employee who fails to furnish advanced notice of a need to take FMLA leave. Hendry v. GTE North, Inc., 896 F.Supp. 816 (N.D. Ind. 1995). Where the employer has a work force, a significant portion of which is not literate in English, the employer is responsible for posting the notice in a language which the employees are able to read. See 29 CFR §825.300(b) and (c).

Where an employer covered by the FMLA has an employee handbook or other form that it disseminates to employees advising them about benefits or leave rights, the employer must include within that material, information about the employee’s FMLA rights and obligations. If the employer does not have such written policies, manuals or handbooks, the employer should provide guidance to employees in written form about their FMLA rights and obligations. Employers may fulfill this obligation with a fact sheet which is available from the offices of the Wage and Hour Division of the Department of Labor. 29 CFR §825.301(a)(1)

Employer are required to provide employees with written notice advising them of the following information:

1. That leave will be counted against his or her FMLA entitlement;

at the end of leave;

6. The employee’s status as a key employee if applicable;

7. The employee’s right to be restored to the same or equivalent job,

Notice of the foregoing must be given no less frequently than the first time in a six month period that the employee gives notice of need for FMLA leave. The employer should give the notice within a reasonable time which is one or two business days if feasible. If the employer fails to provide the notice it may be barred from taking adverse action for the employee’s failure to fulfill the requirements of the FMLA that are required to be set forth in the notice. The notice requirements can be found at 29 CFR §825.301.

Since the Family and Medical Leave Act has been in effect for a relatively short period of time, there are a number of issues of interpretation that have not been resolved by the courts. In the reported decisions certain issues show up more frequently than others. An exploration of the case law developments will help alert employers to the most common pitfalls which can give rise to liability for FMLA claims.

Required Notice to Employer

As mentioned previously, the FMLA requires employees to give at least 30 days notice of a need for leave. Where the need is not foreseeable, the employee must give as much notice as is practicable. The regulations provide as a guideline that employees give notice to the employer "...within no more than one or two working days of learning of the need for leave except in extraordinary circumstances where such notice is not feasible. " See 29 CFR §825.303(a).

When giving notice the employee is not required to spell out in great detail the basis for the need for leave. In Price v. Fort Wayne 3 WH Cases 2nd 1729 (7th Cir. 1997), the employee merely wrote on a request for leave form that the leave was for medical needs. She supported the request with a doctor’s note saying she was required to take time off. The court found that this put her employer on notice that her request was potentially covered by the FMLA. The court pointed out that the employer has the responsibility for designating whether or not an absence is for FMLA leave. The employer must also notify the employee of its designation that the leave is covered by the FMLA. To fulfill this responsibility the employer has a duty to make inquiry to obtain information as to whether the absence is covered by the FMLA. The employee has a duty to furnish the employer with the necessary information. In Carter v. Ford Motor Co., 3 WH Cases 2nd 1829 (8th Cir. 1997) the court found the employee’s notice of a need for leave to be inadequate where he failed to timely furnish information as to the basis for such leave.

The employee may give the notice orally. The notice is not required to be in writing. The employee is not required to mention the FMLA when requesting leave. Hendry v. GTE North, Inc., supra 896 F.Supp. at 828. McGinnis v. Wonder Chemical Co., 3 WH Cases 2nd 71, 75 (E.D. Pa. 1995).

The federal appellate court for the Fifth Circuit ruled in Manuel v. Westlake Polymers Corp., 66 F.3rd, 758 (5th Cir. 1995) that employees do not have to invoke the FMLA by name. An employee’s continuing timely notification that she was to be absent due to complications from an ingrown toenail was adequate. In fact Manuel was not even aware of the existence of the FMLA. The court found that the employee was entitled to FMLA leave and, therefore, the employer could not count her absence against her under its no fault absence policy. In Seaman v. C.S.P.H,Inc., No. 98-100026 (5^th Cir. 1999) the court found that the employee’s remarks had not been specific enough to put his employer on notice that his absence was potentially for purposes covered by the FMLA. The employee had told his supervisor that he thought he might be suffering from bipolar disorder and that he might need to be absent to see a doctor. However he had never asked for any specific time off in connection with his apprehension.

The courts have held employees to the requirement that they give 30 day notice or such notice as is practicable. In Kaylor v. Fannin Regional Hospital, Inc., 946 F.Supp. 988 (N.D. Ga. 1996) an employee gave only five days notice of a doctor’s appointment that had been scheduled approximately three months previously. When the employer told him that he could not be spared on that day, the employee declined to reschedule the appointment. The court upheld the employee’s discharge for not working on the day of the scheduled appointment because of the inadequacy of his notice and because of his refusal to reschedule the appointment when his absence would unduly disrupt his employer’s operations.

Other decisions have also held employees strictly to the requirement that they put the employer on notice that FMLA leave may be appropriate for requested time off. In Browning v. Liberty Mutual Co., No. 97-3567 (8^th Cir. 1999) the court held that the jury reasonably found that an employee had not given adequate notice when her sister called in and said that she would miss work that day as her arm had gone numb and she had "broken down" (referring to her emotional state)e. The employee had undergone surgery for a repetitive motion injury, but her doctor had released her to return to work with restrictions.

In Hopson v. Quitman County Hospital Nursing Home, 4 WH Cases 2d 162 (5th Cir. 1997), the employee was belatedly notified that necessary breast reduction surgery could be performed and thus gave only six days notice. The court held that a medical reason or a medical emergency is not the only basis for a shortened notification due to a change in circumstances. It was up to the jury to determine whether the employee had given notice as soon as practicable.

Conditions and Family Needs

It is not surprising that many of the reported FMLA cases deal with whether an employee is entitled to FMLA leave. Often the issue is whether a serious health condition exists. Certainly relatively minor complaints do not constitute serious health conditions. In Kaylor v. Fannin, supra 946 at 999, the court held that a stomach virus is not a serious health condition. Food poisoning that did not require inpatient care or continued medical treatment was found not to be a serious health condition in Oswalt v. Sarah Lee Corp., 74 F.3rd 91 (5th Cir. 1996). The court further observed that the plaintiff’s high blood pressure involving continuous treatment could be a serious health condition. However, his absence because of his high blood pressure occurred before the effective date of the FMLA and, therefore, it was not protected.

In Dillion v. Carlton, D.C. M. Fla. No. 96-434-CV-ORL-22, 8/14/97, the court held that a child’s attention deficit hyperactivity disorder which a doctor had not certified as a serious health condition did not justify FMLA leave. Therefore the child’s mother could legitimately be discharged based on an absence to attend to the child’s problem.

In Bauer v. Varity Dayton-Walther Corp., 3 WH Cases 2d 1799 (6th Cir. 1997) an employee’s rectal bleeding was found not to be a serious health condition. In that case, the employee did not require inpatient care nor was he required to be absent from work for more than three consecutive days. Additionally, the condition did not disable him from performing the essential functions of his job. In contrast the court in Hodgens v. General Dynamics Corp. 4 WH 2d 993, 1001 (1st Cir. 1998) held that absences for purposes of examination to determine if a serious health condition exists are covered by the FMLA. In this respect the employee does not have to be physically incapacitated to qualify for leave.

A series of medical visits for unrelated conditions may in some cases be aggregated to rise to the level of a serious health condition. The court reasoned in Price v. Fort Wayne, supra 3 WH Cases 2d at page 1731 "...it is not the disease the receives leave from work; it is the person."

In Thorson v. Gemini, Inc., 4 WH Cases 2d 161 (8th Cir. 1997) a condition diagnosed as acute gastritis and possibly a peptic ulcer entitled the employee to FMLA leave where the doctor scheduled a test and ordered the employee to stay home for a week. The court based the decision on a Department of Labor opinion letter which stated that minor ailments such as cold, flu, headaches or upset stomach or minor ulcers could constitute serious health conditions if they cause an incapacity of more than three consecutive days and are treated by a health care provider. A similar result was reached in Victorelli v. Shadyside Hospital, 4 WH Cases 2d 321 (3rd Cir 1997) which involved a plaintiff who had been under continuing treatment by a medical doctor for more than two years for a peptic ulcer who had prescribed medication. The condition caused intermittent absences. The employee’s doctor indicated that the condition was incurable and if untreated it would cause an incapacity of greater than three days. The court determined that there was evidence from which a jury could find that the plaintiff had a chronic serious health condition. Therefore she had a serious health condition that qualified her for FMLA leave without the requirement of her being absent for more than three days. The court observed that the FMLA’s protection was meant to extend to those who have occasional incapacities due to an ongoing health problem.

In Mell v. Weyburn-Bartell, Inc., 4 WH Cases 2d 274 (W.D. Mi. 1997) the court emphasized the regulation language that "Ordinarily, unless complications arise the common cold, the flu, earaches, upset stomachs, minor ulcers, headaches, other than migraine... do not qualify for FMLA leave." In that case the court found that the plaintiff’s flu did not constitute a serious health condition that made him unable to perform the functions of his position as there were no complications.

In Hendry v. GTE North, supra 896 F.Supp. at pp. 827-28, the court found that migraine headaches which disabled the employee from performing the essential functions of her job and for which she received continuous treatment constituted a serious health condition.

According to the regulations, "any period of incapacity due to pregnancy or for pre-natal care" qualifies as a serious health condition. 29 CFR §825.114(a)(2)(ii). However, morning sickness or other discomforts that do not prevent the employee from performing the essential functions of her job are not serious health conditions. In Gudenkauf v. Stauffer Communications, Inc., 922 F.Supp. 465 (D.Kan. 1996) the court found the plaintiff’s morning sickness did not constitute a serious health condition. Although the plaintiff averred that she had considerable distress, this was not supported by the testimony of her health care providers. In contrast the court in Atchley v. The Nordam Group, Inc., __ F.3d __), No. 98-50006 (10^th Cir. 1999) found that the plaintiff’s pregnancy caused symptoms including contractions, back pain, stress and swollen feet, affected her work. The court reasoned that the effects of these symptoms qualified her for FMLA.

In Pendarvis v. Xerox Corp., 4 WH Cases 2d 1024) (D.C.D.C. 1998) the court took a more liberal view of morning sickness as a serious health condition. There the court held that it was up to a jury to decide whether the plaintiff’s morning sickness was disabling to the point that it prevented her from performing her job. The court rejected the employer’s argument that the plaintiff failed to provide a certification from a health care provider on two bases. First, the employer had not asked the plaintiff to provide a certification. More important, the regulations distinguish incapacity due to pregnancy or for prenatal care along with chronic serious health conditions from other potentially serious health conditions. The regulations provide that incapacities due to these conditions qualify for FMLA leave even if there has been no treatment by a health care provider and even if the incapacity is not for more than three days. 29 CFR §825.114(e). The court further pointed to the language in the regulations that "Any period of incapacity due to pregnancy, or for prenatal care" constitutes a serious health condition. 29 CFR §825.114 (a)(2)(ii) (emphasis supplied)

Other than in cases involving pregnancy and chronic serious health conditions an employer does not have to rely on the employee’s personal evaluation of his or her condition. This was the ruling of the court in Olsen v. Ohio Edison Co., 4 WH Cases 2d 247,252 (N.D.Oh. 1997) The court required a health care provider’s evaluation of a need to be absent from work for more than three days. The court also declined to accept a chiropractor’s opinion that the plaintiff had a serious health condition. The regulations provide that a chiropractor is a health care provider only when manipulating the spine to correct a subluxation which is shown to be necessary by an X-ray. 29 CFR §825.800 Olsen’s chiropractor did not perform subluxation. (Treatment or evaluation by a chiropractor for conditions other than those requiring subluxation is acceptable where the employer or a health plan’s benefits director will accept a chiropractor’s certification to substantiate a claim for benefits.)

In Martyszenko v. Safeway, 3 WH Cases 2d 1793 (8th Cir. 1997) the court held that a parent was not entitled to FMLA leave for psychiatric visits and care for a child where there was a suspicion of molestation. The treating psychiatrist had found the child’s behavior was normal and that he was asymptomatic. The doctor placed no restriction on the child’s activity. The court found that there was no condition requiring the employee’s absence from work.

In Kelley v. Crosfield Catalysts, 3 WH Cases 2d 1784, 1785, (N.D. Il. 1997) the court broadly interpreted the FMLA’s requirement of leave "Because of the placement of a son or daughter with the employee for adoption or foster care." The court held that an employee was allowed FMLA leave to seek custody of a child who may or may not have been his biological child . The court noted the statute’s broad definition of son or daughter to include "a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis." 29 USC §2611(12)

While it is generally safer to err on the side of giving leave in close cases, there is no need to give leave for purposes that are clearly not covered.

Many of the provisions of the FMLA were modeled after the Fair Labor Standards Act. When interpreting those provisions the courts look to FLSA case law. In other instances, the courts have looked to precedents established under such statutes as Title VII of the 1964 Civil Rights Act (Title VII), the Age Discrimination in Employment Act (The ADEA) and the Americans with Disabilities Act (The ADEA). Some of the decisions dealing with the subject of "individual capacity suits," that is suits against individual managers or supervisors, hold that they can be maintained under the FMLA.

The courts have based their reasoning on the definition of "employer" in the FMLA at 29 U.S.C. §2611(4)(ii)(1). That section includes in the definition of employer "...any person who acts directly or indirectly in the interest of an employer to any of the employees of such employer..." This is the same definition as in the FLSA. Thus the better reasoned decisions have rejected the rationale of the courts in the majority of Title VII, ADEA and ADA cases which have generally held that individual capacity suits cannot be brought. Those statutes define an employer as a person engaged in an industry affecting commerce that employs the required number of people, "...and any agent of such person." 42 § 2000e(b) (Title VII), 42 U.S.C. §12111(5)(A) (ADA), 29 U.S.C. §630(b) (ADEA).

Support for holding a supervisor, manager or a human resource person who has authority over employees such as hiring, firing, disciplining or deciding on eligibility for FMLA personally for alleged violations of the Act can be found in See McKiernan v. Smith-Edwards Dunlap, 3 WH Cases 2d 272, 275 (E.D. Pa. 1995), Waters v. Baldwin County, 936 F.SUPP. 860, (S.D. Ala. 1996) and Norris v. North American Publishing, 3 WH Cases 2d 1479. A contrary view following the prohibition against individual capacity suits in Title VII cases was followed in Frizzell v. Southwest Motor Freight, 3 WH Cases 203 (D.C. E. Tenn. 1995) and Carter v. Rental Uniform Service, 4 WH 2d 254, 260 (W.D. Vi. 1997)

Not every manager is subject to an FMLA suit. Liability depends upon the amount of authority the individual has over the employee. In Freeman v. Foley, 911 F. Supp. 327 (N.D. Ill. 1995) a person who was the employee’s acting supervisor for one day was not found subject to an individual capacity suit. The court did allow actions to proceed against the two managers who recommended the employee’s discharge and the employer’s vice president of human resources. See also Holt v. Welch Allyn, Inc., 3 WH Cases 2d 1622 (D.C. NY 1997), Norris v. North American Publishing Co, 3 WH Cases 2d 1479 (E.D. Pa. 1997).

The Eleventh Circuit Court of Appeals reasoned similarly in Wascura v. Carter, No. 98-4124 (11th Cir. March 19, 1999) which did not permit an individual FMLA capacity action against the Mayor, Vice Mayor and two City Commissioner of the City of South Miami. The court followed precedent to the effect that individual capacity action will not lie against public officials who do not have sufficient control over the plaintiff’s employment to fall within the FMLA’s definition of an employer.

The courts that have considered the issue differ as to whether a party is entitled to a jury trial in an FMLA case. In Frizzel v. Southwest Motor Freight, 154 F.3d 641(6th Cir. 1998) the court reasoned that like the FLSA, the FMLA is silent as to whether or not the right to a jury trial exists. Since the Supreme Court has ruled that there is a right to a jury trial for damages under the FLSA which has a similar structure, the court upheld the right to jury trial for damages under the FMLA. The decision held that the right to equitable relief such was for the court and not for the jury to decide. The court in Helmly v. Stone Container Corporation, 957 F.Supp. 1274, (S.D. Ga. 1997) reasoned similarly. A contrary position was taken in Hicks v. Maytag Corp., 3 WH Cases 2d 992 (D.C.E. Tenn. 1995) which held that actions for back pay, lost benefits, reinstatement or front pay and liquidated damages are equitable actions and therefore the plaintiff is not entitled to a jury trial. In Souders v. Fleming Companies, Inc., 960 F. Supp. 218 (D. Neb. 1997), the court concluded that the plaintiff in an FMLA case was entitled to a jury trial only on the issues of liability and back pay. The court reasoned, however, that the issue of reinstatement and front pay are equitable and therefore those issues are for the court to decide.

Employers will sometimes wish to come to a settled resolution of an FMLA claim and obtain a release from liability from the complaining employee. This can be a judicious course. The question of whether the release of an FMLA claim signed by an employee pursuant to such a settlement will stand up in court is unsettled. It would not be unexpected if when this issue is decided the courts follow reasoning in the FLSA cases. The Supreme Court has ruled that public policy prohibits an employee from releasing a statutory claim such as is provided by the FMLA. A release of an FLSA claim is only valid if the settlement is supervised by the Department of Labor. However, a release of an FMLA claim was held to be binding on an employee in Folse v. IMC-Agrico, M.P., 3 WH Cases 2d 859 (D.C.E. La. 1996) based on a state law under which it was found to be an enforceable contract. In Sarver v. Bell South Telecommunications, 3 WH Cases 2d 895 (D.C. La. 1996) the court gave effect to a release by implication. The court, following Fifth Circuit law, held that the employee who had signed the release could not maintain a suit unless he tendered back the consideration he received for the release. The issue of whether public policy prohibits releasing an FMLA claim was not considered in either case. Under Supreme Court precedent established subsequent to the Sarver case the employee would no longer be required to tender back the sums received for the release in order to be permitted to maintain his action. See Oubre v. Entergy Operations Inc., 118 S.Ct. 998 (1998).

There is a growing trend on the part of employers to include as part of the employment contract with their employees a clause requiring mandatory arbitration of disputes involving the employment relationship. Impetus was given to this trend when the United States Supreme Court decided Gilmer v. Interstate/Johnson Lake Corp., 500 U.S. 20 (1991). In that case the court found that an employee of a stock brokerage company who signed a standard industry form agreeing to arbitrate all claims with his employer, could be required to arbitrate his claim under the ADEA. The Gilmer decision left a number of questions undecided, but in its wake there have been many lower court decisions upholding mandatory arbitration of employment claims. It would not be unexpected if when the courts resolve the issue of Arbitrability of FMLA claims they will follow the reasoning of decisions in cases involving mandatory arbitration of Title VII, ADEA and ADA cases.

In Reese v. Commercial Credit Corp., 955 F.Supp. 567 (D.S.C. 1997) the court held that FMLA claims are arbitrable. The court pointed out that in determining if a particular claim is arbitrable, the court must determine whether the parties have in fact made an agreement to arbitrate and whether the dispute in question comes within the scope of the arbitration agreement. An FMLA claim was also found to be arbitrable in O’Neil v. Hilton Head Hospital, 3 WH Cases 2d 1697 (4th Cir. 1997). Employers are not likely to be successful in trying to compel arbitration of an FMLA dispute under the arbitration clause in a collective bargaining agreement. Courts generally reason that collective bargaining agreements are structured to settle contractual disputes between the union and the employer which arise under the agreement itself. Their purposes is not to vindicate individual statutory rights. See McGinnis v. Wonder Chemical Co., supra 3 WH Cases 2d FN1, P 73.

In Kaylor v. Fannin Regional Hospital, Inc., supra 946 F.Supp. at p. 997 the court held that the duty of an employer to adhere to the FMLA in allowing eligible employees to take leave is absolute and liability for failure to do so is strict. The subjective intent of the employer is not taken into account in determining whether the employer is liable. (It can be taken into account in determining whether liquidated damages are awarded.) See also Williams v. Shenango, Inc. 4 WH Cases 237,242 (Pa. 1997) in which the court also applied a "strict liability" standard.

The FMLA makes it a violation for an employer to interfere with, restrain, deny or attempt to deny a right provided under the FMLA or to discharge or otherwise discriminate against any individual for opposing a practice made unlawful under the title. It is also unlawful for the employer to discharge an individual (1) because that individual has initiated any charge or proceeding or is about to do so (2) or because the individual is about to give information in connection with any inquiry or proceeding relating to rights provided the FMLA or if (3) the employee has testified or is about to testify in any such inquiry or proceeding. This is similar to the anti-retaliation provisions of such statutes as Title VII of 1964 Civil Rights Act and the Age Discrimination in Employment Act. Where an employee alleges a violation of this provision the employer’s intent is taken into consideration. This intent can be established by circumstantial evidence.

The Supreme Court established a method of allocating proofs of discrimination based on circumstantial evidence in McDonnell-Douglas v. Green, 411 U.S. 792 (1973). That allocation is not rigid in form. The federal appellate courts that have considered the question have applied the McDonnell-Douglas order and allocation of proofs to FMLA retaliation claims. Diaz v. Fort Wayne Foundry Corp. 131 F3d 711 (7th Cir. 1997); Morgan v. Hilti, Inc.. 108 F.3d 1319 (10 th Cir. 19967) and Hodgens v. General Dynamics Corp.,

4 lWH Cases 993 (1st Cir. 1998)

These courts have generally agreed that an employee can initially establish proof of retaliation in an FMLA case by producing evidence of three factors: (1) The employee sought FMLA leave. (2) Some adverse action was taken against the employee such as discharge, demotion or denial of a promotion and (3) There was a causal connection between the invocation of the FMLA rights and the adverse action. Once the employee has made this initial showing, the employer must merely articulate a non-discriminatory basis for the action such as poor performance, violation of a disciplinary code or a layoff pursuant to a reduction in work force. The employee must then meet the employer’s articulated defense by proving that the employer’s explanation was a sham or pretext for discrimination. The employer can accomplish this by showing the employer’s explanation is not credible or that it is more likely than not that the employer was motivated by a discriminatory reason. Under the McDonnell-Douglas proof pattern the employer’s subjective intent is taken into account. The fact that employer made a poor business judgment or incorrectly believed the employee was guilty of the infraction for which he or she was penalized does not by itself establish the necessary discriminatory intent.

Hodgens v.General Dynamics Corp., supra, involved ah individual who was selected for layoff in a reduction in force after taking FMLA protected leave. The court found Hodgens had established a causal connection by presenting evidence that his supervisor told him he was taking too much time off after he was absent for ear surgery. The court reasoned that the temporal proximity between the employee’s taking the leave and the employer’s adverse action may also be taken into account in determining pretext. However the employer prevailed with evidence that Hodgens was selected on the basis of poor performance which was documented before he took FMLA leave. The court also pointed out that many of Hodgens absences were for reasons unrelated to FMLA purposes. It was permissible for the employer to take the unprotected absences into account in considering Hodgens for layoff

In Williams v. Shenango, supra, the court found that there was evidence from which a jury might infer a pretext for retaliation where the employee was discharged because of poor attendance. The company had on occasion denied the employee leave to which he was entitled and discouraged him from taking leave by suggesting that he take the leave at a different time. The employer had also counted FMLA leave against his attendance record. The court noted that a negative inference might be drawn from the fact that the employee received a disciplinary suspension because of attendance problems shortly after returning from FMLA leave.

A former employee may also be protected by the anti-retaliation provisions of the FMLA. In Duckworth v. Pratt & Whitney, 4 WH Cases 1281 (1st Cir. 1998) the court ruled that the employer violated the act by failing to consider a laid-off former employer because of his attendance record which was poor due to his having taken leave for a serious health condition. The court reasoned that former employees have been protected by other federal employment statutes. The court took note of the fact that the Supreme Court had held a former employee entitled to protection under Title VII of the 1994 Civil Rights Act in Robinson v. Shell Oil Co, 519 U.S. 337 (1997). The court also indicated that an applicant or prospective employee may also be protected.

In Dollar v. Shoney’s Inc., 4 WH Cases 1236 (N.D. Ala. 1997) a restaurant dining room supervisor was notified she was being replaced on the day she returned from FMLA leave. During her absence the manager of the restaurant had been transferred. The employer contended that the changes were needed because the restaurant had been poorly managed. The court held that the temporal proximity of the adverse action the plaintiff suffered to her taking leave could not by itself establish a causal connection between that action and her loss of her position.

The principle that an individual is not insulated from the consequences of poor performance or disciplinary infraction is demonstrated in Carillo v. Council of Churches of Christ, 4 WH Cases 223 (S.D.N.Y. 1997). In that case a decision was made to dismiss an employee after he had caused severe financial losses to his employer. The effective date of the dismissal was postponed pending negotiation on his resignation. In the interim the individual took medical leave. When no agreement on the resignation was reached the employee was discharged. The court found no violation of the FMLA. The court held that the FMLA does not protect employees from legitimate discipline.

The McDonnell-Douglas order and allocation of proofs was adopted in Kaylor v. Fannin, supra allowing the employer to successfully defend the employee’s FMLA discrimination claim. It was also applied in an FMLA discharge claim in Dodgens v. Kent Manufacturing Co., 955 F.Supp. 560 (D.S.C. 1997). In Oswalt v. Sarah Lee Corp., 889 F. Supp. 263 (N.D. Miss. 1995) affirmed 74 F.3rd 91 (1996) the court held that to make a prima facie case of FMLA discrimination the plaintiff must show membership in the protected group of FMLA leave seeking employees, the employer made an adverse employment decision and that an employee who did not seek leave under the FMLA was treated more favorably than an employee who had. See also Tuberville v. Personal Finance Corp., 3 WH Cases 2d 882 (N.D. .Miss. 1996)

The FMLA requires employers to restore an employee returning from FMLA leave to the employee’s former position or to an "...equivalent position with equivalent employment benefits, pay and other terms and conditions of employment." The employer in Atchley v. the Nordam Group, Inc., supra was found to have violated the plaintiff’s FMLA reinstatement rights when it failed to provide her with a position when she returned from leave after giving birth to a child. The employer claimed that her job no longer existed due to a restructuring. The court found that the jury reasonably decided she was improperly denied reinstatement. The plaintiff was the only employee who wound up without a job after the change in the structure of employer’s organization.

The FMLA does not require the employer to permit the employee to accrue seniority or obtain any right or benefit the employee to which the employee would not have been entitled if he or she had not taken FMLA leave. 29 U.S.C.§2614(a). The courts have not hesitated to rule for employers where a returning employee has complained about not being in a better position after leave. In Lempres v. CBS, Inc., 916 F.Supp. 15 (D.D.C. 1996) an employee about to return from maternity leave at a CBS station was invited unconditionally to resume her former position as a news broadcast producer. When the employee asked about the permanence of the position she was told that it was as permanent as anything else in the news business. Upon receiving this answer the employee declined to return. Holding that the employer had met its obligation to the employee, the court stated at 916 F.Supp. 20 "...the FMLA does not require employers to give returning employees any assurance of job security to which they would not have been entitled prior to taking maternity leave" (Footnote omitted). Patterson v. Alltel Information Services, Inc., 919 F.Supp. 500 (D.Me. 199) involved an employee who was in trouble and knew he was going to lose his position before his need to go on FMLA leave arose. The court found no FMLA violation when he was assigned to a position with equivalent pay and benefits working on special projects as needed upon his return. Shortly after his return from leave, he lost that position in a reduction in force. The court ruled for the employer holding that the employee would not have been entitled to remain in his former job even if he had not taken leave.

In Maxwell v. Red Cross Blood Services, supra, an employee who on returning from FMLA leave learned that his position was eliminated in a nationally ordered reduction in force was denied relief. The court applied the McDonnell-Douglas Title VII analysis holding that the employer articulated a non-discriminatory reason for denying him reinstatement, namely the reduction in force. The only argument the plaintiff offered was his subjective belief that the employer’s reason was a pretext for discrimination. The court ruled that a subjective belief is not proof of pretext.

In Land v. Sheraton Tunica Corp., 3 WH Cases 1694 (D.C. N.Miss 1997) an employee who worked a day shift prior to maternity leave was assigned other shifts for three months after returning. She was given equivalent wages, benefits and hours. She suffered no monetary loss and therefore no violation of the FMLA was found.

It is clear that an employee who is ready to return from FMLA leave is not entitled to reinstatement to a substantially equivalent position if the individual’s job has been eliminated. However if another position is available the court may scrutinize the facts to determine if it is substantially similar. This was the case in Vargas v. Globetrotters Engineering, 4 WH Cases 2d 1145 (N.D. Il.1998). There the employer denied a returning former field secretary an available position as a secretary in the company headquarters. The employer claimed that her typing ability, 61 words per minute, fell short of the required 70 words per minute. The company had given headquarters secretary assignments to others with typing skills less than 70 words per minute. The court held that a jury could find on the evidence that the two jobs were equivalent and that the plaintiff met the requirements of the headquarters job.

Fejes v. Gilpin Ventures, 3 WH Cases 2d 1773 (D.C. Co.) involved a blackjack dealer whose gaming license had expired during her maternity leave. She was therefore denied reinstatement as being unqualified to hold her position. The regulations require that when an employee returning from leave is unqualified for such reasons as inability to renew a license or attend a course the employee should be given a reasonable opportunity to do so. 29 CFR §825.215(b). The court held that Fejes was entitled to a reasonable opportunity to renew her license.

Of course, if an employee is unable to return to work upon the expiration of all of the FMLA leave to which he or she is entitled, the Act does not prohibit the employer from discharging the employee. Cehrs v. N.E. Ohio Alzheimer Research, 3 WH Cases 2d 1870 (N.D. Oh. 1997).

11/5/99