Using case law and strategies to defend Family and Medical Leave Act claims.

• Jurisdiction: United States
• Author: Wilson, Rebecca J.
• Date: 01 October 1997

Does an employee meet the requirements of the FLMA for leave? A lot of issues and answers go into making that decision

THE federal Family and Medical Leave Act (FMLA), 29 U.S.C. [subsections] 2601-2654, took effect for most employees on August 5, 1993. According to the report of the Senate Committee on Labor and Human Resources, the act is intended to provide a "sensible response" to the growing "tensions between work and family" by "establishing a right to unpaid family and medical leave for all workers covered by the act."(1) While the FMLA has established an avenue for employees to seek relief from the burdens caused by personal and family illness, its implementation has not been without controversy. According to the Department of Labor, the number of complaints filed under the FMLA has risen every year.(2)

Now, after nearly four years, key areas of dispute are crystallizing. The federal courts have yet to interpret significant portions of the FMLA, but by reviewing the growing body of FMLA case law and its regulations, defense counsel can look at sections of the act that are similar to other federal acts to provide themselves with the tools needed to construct arguments based on the other analogous federal statutes.

WHAT REGULATIONS APPLY

The Department of Labor's interim regulations were published in June 1993,(3) and after reviewing the comments, the DOL issued final regulations that took effect on April 6, 1995.(4)

Since the final regulations alter the interim regulations in some significant areas, defense counsel need to be aware that employers sued for alleged FMLA violations occurring prior to April 6, 1995, cannot be held to the standards established in the final regulations. As long as the events involved in an FMLA action occurred prior to April 6, 1995, the dispute is governed by the 1993 interim regulations.(5) As one federal district court stated, "Regulations, like statutes, cannot be applied retroactively absent express direction to do so."(6) Since neither the FMLA nor the final regulations give that "express direction," counsel involved in pre-April 6, 1995, violation cases should have a copy of the 1993 regulations and familiarize themselves with the differences between the two sets.

The discussions and analyses in this article will refer to the final regulations.(7)

WHEN LEAVE IS AVAILABLE

While the FMLA provides leave in some cases of personal emergency, it "clearly does not provide qualified leave for every family emergency," according the federal district court in Kelley v. Crosfield Catalysts, which went on to state that the act "is not a general grant of leave protection covering all family crises."(8)

The FMLA does provide leave for eligible employees if the employee or the employee's spouse, son, daughter or parent suffers from a serious health condition, which it defines as "an illness, injury, impairment, or physical or mental condition that involves inpatient care ... or continuing treatment by a health care provider."(9) What constitutes a "serious health condition" has been at the heart of many disputes under the FMLA.

1. Serious Health Condition of Employee

   In order to be eligible for FMLA leave, the employee must be "(a) unable to perform the functions of his or her position, and (b) suffering from a serious health condition."(10)

   If an employee can perform the duties of the job, the employee is not eligible for FMLA leave, even if the employee suffers from an illness.(11) The DOL regulations define three circumstances in which an employee is deemed to be unable to perform the functions of the position: (1) if a health care provider determines that the employee cannot work at all, (2) if a health care provider determines that the employee cannot "perform any one of the essential functions of the employee's position within the meaning of the Americans with Disabilities Act (ADA), and or (3) if the employee must be absent from work to obtain treatment for a serious health condition.(12)

   The regulations' definition of "serious health condition"(13) encompasses a myriad of situations and should be carefully reviewed in light of the specific facts each case presents. In the simplest of cases, the plaintiff proves that she suffered from a serious health condition by showing that her illness required her to stay overnight in a medical care facility.(14)

   The most frequently invoked definition of "serious health condition," however, requires the employee to demonstrate that the illness caused at least three consecutive days of incapacity and required the employee to be treated by a health care provider on at least two occasions or at least once with a series of continuing treatments under the health care provider's supervision.(15) Other definitions include any incapacity caused by pregnancy or prenatal care;(16) a chronic or episodic condition that requires periodic treatments, such as asthma or epilepsy;(17) or a condition that requires regular treatments, such as chemotherapy or kidney dialysis, to prevent a known condition from becoming severe.(18)

   While counsel may look to the ADA for cases discussing the criteria for being unable able to perform an essential job function, recent decisions have analyzed the definition of a "serious health condition" under the FMLA. One is Hendry v. GTE North Inc.,(19) in which the employer, GTE, terminated Debrah Hendry for excessive absenteeism. Hendry alleged that she suffered from debilitating migraine headaches and that when one occurred, she felt nauseous, could not eat or drink, could not drive, and easily lost her balance. While she could work when the symptoms were not severe, on some occasions the migraines made her completely unable to perform her job functions.

   At first GTE accommodated Hendry's condition by allowing her to use vacation days when she was sick and letting her leave work early for doctor's appointments. These practices ended, however, when GTE transferred her to a new department. When GTE eventually terminated her, it cited her excessive absenteeism rate, not her illness, as grounds.

   When Hendry filed suit charging that her termination violated the FMLA, GTE sought summary judgment, arguing, among other things, that Hendry did not suffer from a serious health condition.

   The federal district court stated that Hendry would suffer from a serious health condition if she was unable to perform her duties on more than three consecutive days and required treatments two or more times. Since there were factual questions as to whether Hendry's migraines kept her from performing the functions of her position and as to whether she had been treated on two or more occasions, the court denied summary judgment on the "serious health condition" question.

   Another court facing a similar question entered summary judgment for the defendant. In Bauer v. Dayton-Walther Corp.,(20) the federal district court held that the plaintiff did not demonstrate that he suffered from a serious health condition. Bauer claimed to have rectal bleeding and either left work early or failed to appear on three occasions because of the bleeding. When his employer terminated him for excessive absenteeism, he claimed he had been terminated in violation of the FMLA.

   The court refused to conclude that Bauer suffered from a serious health condition.' First, the court found that, assuming Bauer's condition caused him to miss work, he was never absent for three consecutive days. Nor could it could find that Bauer suffered from a chronic condition that caused periods of incapacity and required treatments on a continuing basis. The court noted that Bauer had complained to his employer of his condition on only three occasions and had visited his doctor only once. At no time was he under the care of a physician or receiving multiple treatments to remedy, his rectal bleeding.

   It is interesting to note that after finding Bauer could not prove he was suffering from a serious health condition as defined in the FMLA regulations, the court went on to determine whether Bauer's condition was covered by the plain language of the FMLA and its legislative history, but that review, however cemented the court's conclusion that Bauer was not entitled to FMLA protection. The court stated:

   Congress sought to parse out illnesses

   which it believed should be treated under

   sick leave policy from those much more serious

   illnesses that implicated the protections

   of the FMLA.... Rectal bleeding is nowhere

   listed in the nonexclusive list of examples of

   "serious health conditions" which include afflictions

   such as heart attacks, most cancers,

   and pneumonia.(21)

   Through this analysis, the court suggests that an employee who fails to prove an ailment is a serious health condition as defined in the regulations is not foreclosed from recovery under the FMLA. The employee should be provided the opportunity to demonstrate that the FMLA or its legislative history considered his ailment a "serious health condition." The Bauer court's opinion seems to suggest an analysis in which courts will allow plaintiffs two chances to prove they suffer from a "serious health conditions." Defense counsel should insure that summary judgment motions address both the regulatory and statutory language in order to close the door fully on a plaintiffs claim of a "serious health condition."

2. Serious Health Condition of Family Member

   1. Caring for Minor Child

      If the employee's spouse, child or parent is suffers from a serious health condition, the FMLA provides leave if the employee is required to care for the sick relative.(22) An employee is required to care for an ailing relative if that relative requires physical care, such as assistance with transportation, hygiene or nutrition. Leave can also be taken if the employee is require to provide psychological care, including comfort and assurance, to a family member with a serious(23) health condition.

      In Johnson v. Primerica,(24) a father was not eligible for...