Dec 31, 1999 Year In Review

What’s New With The Family and Medical Leave Act?

The federal Family and Medical Leave Act of 1993 (the “FMLA” or the “Act”), requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons: the employee’s own serious health condition, the birth, adoption or foster care placement of a child, or the need to care for a spouse, parent or child who has a serious health condition. Employees must be returned to their prior jobs or to equivalent jobs when they return to work after taking FMLA leave.

Private sector employers covered by the Act are those with 50 or more employees within a 75-mile radius. Eligible employees are those who have worked for a covered employer for at least one year and who have worked at least 1,250 hours in the year immediately preceding any FMLA leave.

Generally speaking, an illness, injury, impairment, or physical or mental condition constitutes a “serious health condition” as defined by the FMLA if it meets one of the following criteria:

  • the health condition requires an inpatient hospital stay;
  • the health condition requires continuing treatment by a health care provider that includes an absence from work or school for more than three days;
  • the health condition is related to pregnancy;
  • the health condition is chronic and requires periodic absences from work or school;
  • the health condition is permanent or long-term and requires periodic absence from work or school for treatment.

To receive the protections of the FMLA, an employee requesting FMLA leave must give his or her employer at least 30 days’ advance notice if the reason for the leave is foreseeable, or as much notice as practicable if the leave request is precipitated by a medical emergency or otherwise unforeseeable event. However, an employee who fails to specifically advise his or her employer that an absence should be designated as FMLA leave may still be protected by the Act if the employer had reason to know that the absence in question resulted from an FMLA-qualifying condition or event.

An employer may require that an employee requesting FMLA leave provide certification by a health care provider that the employee has a serious health condition and is unable to perform his or her position, or that the employee’s spouse, parent or child has a serious health condition and the employee is needed to care for that family member. If an employer does not agree with the employee’s medical certification, the employer may require the employee to obtain a second or third medical opinion at the employer’s expense.

When medically necessary, employees may take FMLA leave on an “intermittent” or “reduced leave” schedule (e.g., one day per week or one hour per day). Intermittent or reduced schedule leave is not required by the Act when leave is taken for the birth or adoption of a child.

Viewed in the most favorable light, the FMLA has the salutary purpose of enabling employees to attend to their own or their family’s medical and childcare needs without fear of losing their jobs. However, many employers have been frustrated by the complexity of the Act and its implementing regulations, which impose significant recordkeeping and other requirements on employers. Moreover, the FMLA can, at times, seem to impede employers’ efforts to reduce employee absenteeism.

There is some good news for employers these days, however, as courts continue to work their way through the intricacies of the Act and the regulations. Summarized below are some of the more significant FMLA issues that were addressed in 1999.


In 1999, at least two federal appellate courts have ruled that a purely technical violation of the FMLA by an employer, working no substantive harm on the plaintiff, does not compel a finding of liability against the employer. For example, in Sarno v. Douglas Elliman-Gibbons & Ives, 183 F.3d 155 (2d Cir. 1999), the Second Circuit Court of Appeals affirmed the dismissal on summary judgment of plaintiff’s FMLA claims against his former employer. The plaintiff injured himself while at work, and he consequently was absent from work for 12 weeks. The employer advised him that the leave of absence would be considered FMLA leave. When the 12 weeks expired, the employer contacted him to find out when he planned to return to work; he responded that he was still disabled. The employer terminated his employment on the grounds that his 12 weeks of FMLA leave had expired, he was not ready to return, and his position needed to be filled. Plaintiff remained unable to work for two months following the termination of his employment. Plaintiff sued, claiming in part that the employer had violated the FMLA by failing to give him notice that he was not entitled to more than 12 weeks of leave under the Act. Both the trial court and the appellate court concluded that the employer was not liable for violating the Act because the plaintiff had received every substantive benefit he was entitled to under the FMLA. The Second Circuit explained, “We decline to interpret the FMLA as giving an employee a right to sue the employer for failing to give notice of the terms of the Act where the lack of notice had no effect on the employee’s exercise of or attempt to exercise any substantive right conferred by the Act.” Id. at 162.

Similarly, the plaintiff in McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999), took 15 weeks off from work when she gave birth. When she returned to work, she was demoted. She sued under the FMLA, alleging that her employer failed to return her to her prior position or an equivalent position at the conclusion of her leave of absence. Specifically, she claimed that because her employer failed to notify her that her paid disability leave and her unpaid FMLA leave could run concurrently, she was entitled to take the two leaves consecutively (i.e., 13 weeks of disability leave followed by 12 weeks of FMLA leave). Further, she argued, because she took only 15 weeks of leave, she was entitled to be restored to her prior position or an equivalent position upon her return to work.

The district court granted the employer’s motion for summary judgment, finding that the regulations requiring an employer to notify an employee that disability leave and FMLA leave run concurrently are invalid. The Eleventh Circuit Court of Appeals affirmed the dismissal of plaintiff’s FMLA claims, explaining that the federal regulation at issue, 29 C.F.R. § 825.208, is invalid and unenforceable because it “converts the statute’s minimum of federally-mandated unpaid leave into an entitlement to an additional 12 weeks of leave unless the employer specifically and prospectively notifies the employee that she is using her FMLA leave….The regulations not only add requirements and grant entitlements beyond those of the statute but they also are inconsistent with the stated purpose of the statute.” Id. at 1308. The appellate court concluded that, “[w]here an employer such as defendant exceeds the baseline 12 weeks by providing not only more leave than FMLA but also paid leave, the employer should not find itself sued for violating FMLA.” Id.

District courts have begun to rely on decisions like Sarno and McGregor to find that technical violations of the FMLA by employers do not necessarily result in liability under the Act. For example, the District Court in Donnellan v. New York City Transit Auth., No. 98 Civ. 1096 (BSJ), 1999 WL 527901 (S.D.N.Y. July 22, 1999), granted the employer’s motion to dismiss the plaintiff’s FMLA claims. The plaintiff suffered an injury that constituted a “serious health condition” under the FMLA; she commenced a medical leave of absence that continued for 17 weeks, at which point her position was eliminated. The plaintiff remained unable to work for more than a year; she was later rehired by the employer but was not restored to an “equivalent” position. The plaintiff alleged that the employer violated the FMLA by failing to expressly designate her 17-week leave as FMLA-qualified leave, which, she claimed, meant that the clock never began to run on her FMLA leave and that she was entitled to be restored to her previous position when she was ready to return to work more than 52 weeks after her leave of absence commenced.

Granting the employer’s motion to dismiss, the court conceded that in some circumstances, an employer’s failure to designate an employee’s absence as FMLA leave would interfere with that employee’s FMLA rights. In this case, however, because the plaintiff was unable to return to work for more than one year after her leave of absence began, she could not have avoided exhausting her 12 weeks of FMLA leave due to her serious health condition. Thus, she was denied no substantive right as a consequence of her employer’s “technical” violation of the FMLA (i.e., its failure to expressly designate her leave of absence as an FMLA leave). The court concluded, “[t]o find that this technical violation of the designation regulations functions to deny plaintiff of her FMLA rights would be an egregious elevation of form over substance.” Id. at *4.


The plaintiff in Doe v. King County, No. 97-35876, 1999 WL 50860 (9th Cir. Jan. 7, 1999), was the bailiff and sole employee of a superior court judge. His employment was terminated while on leave of absence receiving treatment for his cocaine addiction. The judge terminated plaintiff’s employment while he was on leave because his position required “a high level of trust, confidentiality, and responsibility,” which the plaintiff had breached by engaging in unlawful conduct (abusing cocaine) while in the judge’s employ. The plaintiff sued, alleging that he was terminated in violation of the FMLA for taking a medical leave of absence covered by the Act. The district court disagreed and granted the employer’s motion for summary judgment. The Ninth Circuit affirmed this decision on appeal, finding that “Doe was terminated by the judge not for taking leave, but for his illegal conduct and the resulting loss of trust in an employee occupying a sensitive post.” Id. at *1.


The plaintiff in Barnett v. Revere Smelting & Refining Corp., No. 98 Civ. 7307 (CM), 1999 WL 965429 (S.D.N.Y. Oct. 15, 1999), alleged that he had informed both his supervisor and the Company nurse that he suffered from a heart condition which might render him occasionally unable to work, and he claimed that his employer violated the FMLA when it fired him for excessive absences immediately following a two-day absence from work due to that condition. Although the employer argued that plaintiff’s heart condition was not a “serious health condition” under the FMLA, the court found that his condition would constitute a serious health condition if it required periodic visits to a health care provider for treatment, continued over an extended period of time, and caused episodic incapacity. The employer also contended that it had not received adequate notice of plaintiff’s need for FMLA leave, because he had called the Company’s security guard and advised only that he was having chest pains and difficulty breathing, and not that these symptoms or his resulting absence from work were due to his heart condition. The court denied the employer’s motion for summary judgment, finding that there were material factual disputes with respect to the pivotal question of whether the employer had enough information to know that plaintiff’s two-day absence was related to his previously-disclosed heart condition.


In Miller v. AT&T, 60 F. Supp.2d 574 (W.D. Va. 1999), the plaintiff, who was absent from work due to a severe case of the flu while on final warning for attendance, subsequently submitted a medical certification form completed by her physician, certifying that she had been absent from work due to a serious health condition. After reviewing her medical certification, the employer concluded that the plaintiff’s illness did not constitute a serious health condition covered by the FMLA because her physician had not certified that she was treated on two or more occasions for her illness. Without advising the plaintiff of this alleged deficiency in her FMLA certification, the employer denied her application to have her absences counted as FMLA leave. Two days later, she was fired for excessive absenteeism.

The court rejected the employer’s argument that plaintiff’s medical certification was insufficient, finding that plaintiff’s physician stated that her condition qualified as a serious health condition, and he supported this opinion with medical facts and documentation. He also indicated the date the serious health condition commenced, and the duration of the condition; finally, he stated that plaintiff was unable to perform the functions of her position for the duration of her flu. Citing the applicable federal regulation, the court stated that “[a]n employer may not require additional information.” Id. at 579.

The court likewise rejected the employer’s contention that the flu cannot qualify as a serious health condition. Noting that the regulations state that the flu ordinarily is not a serious health condition, the court concluded that, “whether or not a particular case of the flu qualifies as a serious health condition is and should be left to the informed discretion of medical doctors.” Id. at 580. If it wished to contest the validity of the plaintiff’s medical certification, the employer could have availed itself of the second-opinion procedures under the FMLA; having failed to do that, the employer did not have the right to deny plaintiff’s application for FMLA leave. Accordingly, the court granted the plaintiff’s motion for summary judgment and found the employer liable for wrongfully denying her request for FMLA leave.


In a recent opinion letter, the Wage and Hour Division of the U.S. Department of Labor responded to an employer’s question regarding its right to change its method of calculating the “12 month period” in which an eligible employee may take up to 12 weeks of FMLA leave. The opinion letter described four alternative methods for calculating the 12 month period: calendar year, any fixed 12-month “leave year;” the 12-month period measured forward from the date the employee’s first FMLA leave begins; or a “rolling” 12-month period measured backward from the date the employee uses any FMLA leave. According to the Department of Labor, an employer must consistently apply to all employees whichever of these alternative methods it selects, except that the employer may change to another method so long as it gives employees 60 days’ advance notice of the change. During the 60-day “transition period,” employees’ entitlement to FMLA leave must be calculated under the more generous of the prior method of calculation, or the newly announced method.


In another opinion letter, the Wage and Hour Division explained that an employee who is absent from work due to an FMLA leave is not per se prohibited from continuing to work at a second job. Rather, if the employer has a consistently-applied policy prohibiting outside employment while an employee is on a paid or unpaid leave of absence, employees on FMLA leave would be subject to that policy. Absent such a policy, an employee may do as he or she chooses while on FMLA leave.


Finally, the Wage and Hour Division issued an opinion letter on the subject of whether overtime hours may be included in the calculation of the 12 “workweeks” of FMLA leave to which an eligible employee is entitled. According to this opinion letter, an employee’s workweek is determined based on his or her usual or normal weekly schedule. Accordingly, if overtime hours are only worked “as needed,” or if overtime is strictly voluntary, such hours may not be counted to calculate the amount of FMLA leave an employee is eligible for, nor may those hours be charged to the employee’s FMLA leave entitlement. On the other hand, if an employee normally works overtime and that employee is unable to work overtime because of an FMLA-qualifying reason, any overtime hours not worked may be counted against the employee’s FMLA leave entitlement.


More than five years after it was enacted, the FMLA continues to be the subject of significant political debate. Recent pronouncements from the White House and from Congress suggest that the Act may be expanded within the next several years. In his January 1999 State of the Union Address, President Clinton suggested that because FMLA leave is unpaid, many Americans cannot avail themselves of the Act’s job protections. Accordingly, he proposed that workers should be eligible to collect unemployment insurance benefits while on FMLA leave. The President also spoke approvingly of legislation recently proposed by Congressional Democrats that would expand the coverage of the Act to employers with at least 25 employees and would permit employees to take up to 24 hours of FMLA leave each year to attend school activities of their children, or to attend to the routine medical needs of their children. Republicans have suggested that they will respond to such legislation with proposed amendments of their own, requiring employees to take FMLA leave in increments no smaller than half-days, permitting employers to require more extensive medical evidence to support an employee’s medical certification, and narrowing the definition of “serious health condition” under the Act.