The Fmla at Four: Insights and Ideas for the Employment Lawyer

• Publication year: 1997
• Pages: 101
• Citation: Vol. 26 No. 10 Pg. 101

26 Colo.Law. 101 Colorado Lawyer 1997.

1997, October, Pg. 101. The FMLA at Four: Insights and Ideas for the Employment Lawyer

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101

Vol. 26, No. 10, Pg. 101

The Colorado Lawyer
October 1997
Vol. 26, No. 10 [Page 101]

Specialty Law Columns
Labor and Employment Review
The FMLA at Four: Insights and Ideas for the Employment Lawyer
by Charles T. Passaglia

In 1996, the Secretary of Labor referred to the Family and Medical Leave Act of 1993 ("FMLA") as a "floor of decency" beneath which American working standards should not drop. Not surprisingly, therefore, a move is afoot to expand the law.1 Ironically, amidst this call for change employment law practitioners are just beginning to understand how the FMLA impacts the workplace. This article highlights some of the important interpretations of the FMLA in its young life

A Leave Entitlement

The FMLA requires a covered employer to provide an eligible employee up to twelve workweeks of unpaid, job-guaranteed time off in a twelve-month period, with continued health insurance benefits, for any one or more of the following reasons: (1) birth and care of a newborn child; (2) adoption or foster care of a child; (3) care for a spouse, son daughter, or parent with a serious health condition; and (4) the employee's own serious health condition.2 The FMLA is an unfettered right, not a benefit. Therefore, an eligible employee may take FMLA leave even if the employer believes he or she may never be able to return. Unlike the Americans With Disabilities Act ("ADA"), there is no "undue hardship" defense to FMLA claims.

Most employers are not confused by who is covered under the FMLA.3 Perhaps the most fascinating aspect of employer coverage is the potential liability of supervisors and managers. Under Title VII of the Civil Rights Act of 1964, courts are receding from personal liability of managers for violations of the law.4 Under the FMLA, however, individual liability appears clear.5

Employers have a duty to confirm the eligibility of their employees to take leave.6 Conversely, the failure by an employee to allege his or her eligibility for FMLA leave in a complaint is grounds for dismissal.7 Two interesting interpretations of the FMLA employee eligibility requirements beg further guidance. First, the Department of Labor is of the opinion that employment with a temporary agency on the employer's premises, prior to eventual employment with the employer, may be counted toward the twelve months of employment and 1,250 hours of service required for eligibility under the FMLA.8

Second, and more encouraging for employers, an employer is not estopped from denying FMLA leave by failing to notify an employee that he or she is not yet eligible for FMLA leave. In a recent case, a federal district court struck down as unconstitutional and invalid a provision of the FMLA final regulations mandating that employers must confirm the eligibility of the employee to take leave or the employee was "deemed" eligible for FMLA leave.9 This case is certain to inspire more employer challenges to the lengthy and, arguably, burdensome FMLA regulations.

The definition of a "serious health condition" is the most vexing--and litigated--aspect of the FMLA.10 Continual attempts are being made to stretch the limits of the FMLA through the definition of a serious health condition.11 However, courts require some "incapacity" to establish a serious health condition.12

Intermittent Leave

An employee is not entitled to more than twelve weeks in a twelve-month period.13 For example, multiple births do not entitle an employee to more than twelve workweeks of FMLA leave.14 Where medically necessary, however, the twelve weeks can be taken all at once or "intermittently," that is, in blocks of time or a reduced work schedule.15

Perhaps the greatest administrative burden for employers is tracking the use of intermittent or reduced schedule leave under the FMLA. The failure to record accurately the use of intermittent leave is prime litigation fodder, particularly considering the fact that intermittent leave can be taken in very small increments of time.16 Indeed, interpretive guidance from the Department of Labor has made it clear that intermittent leave--for example, every Friday and Monday afternoon off for dialysis treatment--could last "forever" if the employee never exhausts the twelve weeks of leave in any twelve-month period.17

Of course, curbs on potential abuse of FMLA leave include the employers' rights to: (1) require thirty days' notice of the need for foreseeable leaves;18 (2) require the employee to report periodically on his or her status and intent to return to work;19 (3) temporarily transfer the employee taking intermittent leave to an available alternative position with equivalent pay and benefits;20 and (4) subject to a doctor's approval, request the employee to reschedule leave. An employee cannot refuse to transfer to an alternative job, unless the transfer would "adversely affect" the employee, such as discouraging him or her from taking leave or increasing commuting distance, time, or cost.21

"Amidst calls for change in the FMLA, employment law practitioners are just beginning to understand how it impacts the workplace."

Employers may designate any qualifying leave as FMLA leave, even if the employee does not request FMLA leave.22 Many employees insist they would prefer to use paid leave benefits instead of FMLA leave. However, an employee cannot refuse to take qualifying FMLA leave. On the other hand, an employee cannot be required to take more leave than is medically necessary.23 Finally, only the amount of leave actually taken in connection with the FMLA may be counted toward the FMLA.24 Hours the employee is "suffered or permitted" to work for the employer, such as working at home, count as hours worked and not as FMLA leave.25

Paid Leave Substitution

Understanding the concept of paid leave substitution is critical for assuring compliance with the FMLA. Under the FMLA, an eligible employee may elect, or an employer may require the employee, to substitute accrued paid leave for all or part of any unpaid FMLA leave.26 Obviously, the greatest deterrent to abuse of FMLA leave is the fact that the leave is unpaid.27 Therefore, employer advocates encourage running paid leaves concurrently with FMLA leaves.

A question arises whether employees who are receiving workers' compensation or short-term disability benefits during an FMLA leave have the right to substitute other paid leaves in addition to these pay continuation programs. The FMLA regulations state that, in such cases, the provisions for paid leave substitution are not applicable.28

Similarly, a Department of Labor opinion letter states that an employer cannot require an employee to substitute any paid vacation or other leave during any part of an absence otherwise covered by temporary disability benefits or insurance, including state-mandated disability provisions.29 Thus, the use of so-called "make whole" policies, permitting employees to supplement workers' compensation benefits with accrued paid leaves in order to receive 100 percent of their weekly pay, is questionable.

Notification and Certification

Employers are required to give eligible employees notice of their FMLA rights.30 It remains the employer's responsibility to designate all leave taken, whether paid or unpaid, as FMLA-qualifying, based on information directly obtained from the employee or his or her spokesperson.31 If the employer has the requisite knowledge to determine that leave is for an FMLA reason at the time the leave commences and the employer does not specifically notify the employee that the leave is being designated as FMLA leave, the employer may not designate time off as FMLA leave...