Category Archives: FMLA

FMLA Article by Attorney J. Scott Falls Published in South Carolina Lawyer Magazine

Attorney J. Scott Falls and summer law clerk/law student Emily Nellermoe’s article on the mistakes employers make in assessing FMLA leave has been selected for publication by the South Carolina Lawyer magazine. It was published as the cover story of South Carolina Lawyer in the January 2014 edition. Employees who work for employers with more than 50 employees should read the article to understand their rights under the FMLA. If you have an FMLA question or concern, please contact us. Click on the link above to read the article.


Seven Common Mistakes Employers Make

Scott Falls, Esquire

Emily M. Nellermoe, J.D. Candidate

July 2013

The Family and Medical Leave Act of 1993 (“FMLA”) provides up to 12 weeks of unpaid leave to an eligible employee for his or her own serious health condition or the serious health condition or military service of a family member.[i] The FMLA generally applies to: (1) employers who employ 50 or more employees in 20 or more workweeks in the current or proceeding calendar year; (2) all public employers;[ii] and (3) all private elementary and secondary schools.[iii] To be eligible for FMLA benefits, an employee must: (1) have worked for a covered employer for a total of at least 12 months; (2) have worked at least 1,250 hours over the previous 12 months; and (3) work at a location where at least 50 employees are employed by the employer within 75 miles of the worksite where the employee requesting leave is employed.[iv]

The FMLA was created in order to help workers “balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.”[v] Although the legislation is focused on employees, employers can also reap the benefits of increased productivity and employee loyalty that comes from creating “stable workplace relationships.”[vi]

Like every piece of legislation, the FMLA comes with its own set of challenges, generating confusion among employers, employees, and attorneys alike. First, the Act can be more technical than its employment law brethren (Title VII, ADEA, ADA, etc.). The FMLA places hefty consequences on employers who do not comply (liquidated monetary damages, attorney’s fees, equitable relief, etc.).[vii] Additionally, Congress made substantial amendments to related regulations as recently as 2009 and FMLA case law is still evolving in several areas. The following list highlights seven of the most prevalent FMLA pitfalls in no particular order.



Determining Eligibility

Calculating the number of employees in order to determine FMLA eligibility can become quite tedious. The following types of employers should pay close attention to the eligibility rules set forth by the Secretary of Labor:

  • Employers who employ or station workers internationally.[viii]
  • Employers with a fluctuating payroll, i.e. those who hire seasonally.[ix]
  • Employers who downsize to fewer than 50 workers.[x]
  • Employers who employ workers with no fixed worksite.[xi]
  • Airlines (thanks to the brand-new Airline Flight Crew Technical Corrections Act of 2013).[xii]

It is not wise for employers to try and weasel their way out of FMLA compliance; the FMLA specifically prohibits manipulating the number of employees for purposes of avoiding FMLA eligibility (e.g. transferring employees between worksites in order to keep employment below the 50-employee threshold).[xiii] According to a D.O.L.-commissioned study, 34.6% of all worksites are large enough to have covered employees.[xiv] Of course, the D.O.L. encourages employers of all sizes to adopt their own related policies and expand on those provided in the FMLA.

Failure to Meet FMLA Notice Requirements

It is never the employee’s responsibility to request FMLA leave; if an employee notifies the employer that she is taking time off for an illness, it becomes the employer’s responsibility to inform her of her rights in accordance with all of the notice requirements set forth under the statute.[xv] An employer may be equitably estopped from challenging an employee’s FMLA eligibility at trial if an “inadequate notice effectively interfered with plaintiff’s statutory rights.”[xvi]

Furthermore, it is the burden of the employer to determine which situations could be FMLA-related, especially when an employee provides minimal information. According to DOL guidelines, an employee need only provide “sufficient information” to put an employer on notice of potential FMLA-qualifying leave; the employee is not required to specifically reference the FMLA or use any “magic words.”

Consider the Third Circuit case Lichtenstein v. University of Pittsburgh Medical Center; here, an employee left her supervisor a voicemail stating the following: “[c]urrently in the emergency room . . . my mother has been brought into the hospital via ambulance, and I am unable to work today.” The employee was terminated four days later for excessive absences; she countered by suing for interference with her FMLA rights. The court found that the employee had given her supervisor enough information for him to conclude that FMLA leave may be at issue and therefore created an obligation to find out additional information.[xvii]

If the employer is unsure whether a situation involves the FMLA, it should follow up with the employee. Employers’ failure to give adequate and proper notice could result in liability for compensation of benefits or other monetary losses and/or equitable relief (e.g. reinstatement, promotion, etc).[xviii] To be safe, employers should utilize the forms available on the D.O.L.’s website.[xix]

An employer has five business days from the time it acquires knowledge of an employee’s qualifying situation to provide that employee with three important notifications:

  1. Eligibility Notice (can be provided verbally or in writing): states whether the employee is eligible to take FMLA leave. If she is not eligible, the notice must state at least one reason why.[xx]
  2. Rights & Responsibilities Notice (must be provided in writing): details “specific expectations and obligations of the employee” and explains “any consequences of a failure to meet these obligations,”[xxi] including:
    1. Requests for medical or qualifying exigency certification (the D.O.L. has various certification forms available online; look for the “WH-380” series).[xxii]
    2. The employee’s right to maintenance of benefits during FMLA leave and restoration to the same or equivalent job upon return.
    3. Whether the employer will require a fitness-for-duty certification when the employee returns.
  3. Designation Notice (must be provided in writing): notifies the employee as to whether her time out will be counted against her FMLA leave entitlement.[xxiii]

As a final piece of notice-related advice, it is important that any discussions regarding an employee’s FMLA leave are recorded in writing; this helps employers maintain compliance with federal and internal guidelines.

Failing to Follow FMLA Requirements Regarding Employee Medical Certifications

Prior to Leave:

An employee is never required to provide his employer with extensive medical records. However, the employer does have the right to request a Medical Certification (to be completed by the treating physician) that sets forth sufficient medical facts to establish the existence of a serious health condition. Any medical records outside the scope of the medical certification form are off limits to employers.[xxiv] Additionally, in order to comply with HIPAA privacy laws, the employer representative contacting the employee’s physician must under no circumstances be that employee’s direct supervisor; only an HR professional, a leave administrator, or a management official should have contact of this kind.[xxv]

If an employer has suspicions about the duration or appropriateness of leave, it may require a second (or third) opinion for initial certification purposes;[xxvi] it can also request a re-certification at a later date.

After Leave:

Employers have the right to request a Fitness-For-Duty Certification (“FFDC”) when an employee returns from FMLA leave. This form must be signed by the employee’s physician and certify that the employee is capable of returning to work.[xxvii] The FFDC may only address the specific medical condition for which the employee took the leave. An employer may also require that the certification specifically state whether the employee has the ability to perform essential functions of the job (in order to require this, the employer must have provided the worker with a list of essential functions prior to delivery of the Designation Notice). While an employer has the right to contact the employee’s physician for authentication or clarification of the FFDC, the employer may not delay the employee’s return to work while contact with the physician is being made.[xxviii]

Not taking an Employee’s Medical Condition Seriously

Many employers are naturally concerned about the potential for added administrative burdens and lost productivity when a worker tries to take FMLA leave. However, being dismissive or doubtful of an employee’s valid medical condition is a dangerous path for employers to tread. So, what types of medical conditions or treatments entitle an employee to exercise their FMLA rights?

What is FMLA-eligible:

In order to take FMLA leave for a “serious health condition,” an employee must show that his illness, injury, impairment or physical or mental condition (or that of a family member’s) . . .

  • Involves inpatient care, i.e. “an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity”[xxix]; or
  • Involves continuing treatment by a healthcare provider, i.e. determining if a health condition exists, evaluating a condition, or a regimen of treatment including “a course of prescription medication” or “therapy requiring special equipment”[xxx]; and
  • That results in a “period of incapacity of more than three consecutive, full calendar days,” defined as the “inability to work, attend school or perform other regular daily activities.”[xxxi]

What is not FMLA-eligible:

  • The common cold, the flu, an upset stomach, non-migraine headaches, routine dental or orthodontia problems, etc.[xxxii]
  • Routine physical, optical, and dental examinations.[xxxiii]
  • Any activities that can be “initiated without a visit to a health care provider” are not sufficient “to constitute a regimen of continuing treatment” by themselves. For example, a continuous regimen of taking of over-the-counter medications would not qualify.[xxxiv]


Tricky areas:

  • Cosmetic/Plastic Surgery: Voluntary cosmetic/plastic surgeries (including dermatological and dental procedures) generally do not qualify unless (1) inpatient hospital care is required, or (2) other serious complications arise from such procedures.[xxxv] Restorative dental or plastic surgery after an injury or after the removal of cancerous growth would qualify as long as inpatient care or ongoing treatment is necessary.
  • Allergies or Mental Illness (e.g. severe depression): these may be “serious medical conditions” only if inpatient care or ongoing treatment is also necessary.[xxxvi] It is a good idea to request a Medical Certification before granting leave for these conditions.

If an employer has reason to believe that an employee is exaggerating or faking a medical condition, it should not deny him or her FMLA leave without further investigation.[xxxvii] There are other ways to weed out suspicious claims (medical certification and re-certification, second medical opinions, asking pointed up-front questions, etc.) that don’t involve false accusations or potential FMLA interference lawsuits.

Contacting employees Too Often During FMLA Leave: The “Chilling” Effect

Employers are naturally and understandably curious about how long an employee’s FMLA leave will last. Employers do have the right to know this information, but they must be careful not to cross the line into harassing behavior.

In 2011, the Western District Court of Arkansas decided that frequent contact by an employer during an employee’s leave could constitute FMLA interference. In the case, the employer (specifically, the plaintiff’s immediate supervisor) contacted the employee weekly while she was recovering from back surgery. Because of the nature and frequency of the calls, the employee claimed that she felt pressured to cut her leave short; the court agreed that the employer’s actions had a discouraging or “chilling effect” on the duration of the plaintiff’s leave.[xxxviii]

The FMLA provides procedures for contacting employees while they are on leave. Under the Act, “an employer may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work.”[xxxix] However, this contact must not be arbitrarily applied or discriminatory. Further, in determining the propriety of such contact, “all of the relevant facts and circumstances” of each individual case must be considered. If the employee finds out that she needs more time than originally anticipated, the employer may require the employee to provide “reasonable notice (i.e., within two business days) of the changed circumstances.”[xl]

Employers can shield themselves from an FMLA interference claim by providing employees with clear, written instructions for periodic reporting during leave. Make sure that the level of contact is appropriate given each employee’s FMLA-eligible situation and his or her position at work. Also, employers must ensure that anyone in contact with an FMLA employee avoids language that could potentially pressure the employee to cut his leave short or cause him to fear for his job security.

Requiring Employees on FMLA Leave to Work From Home

Employers often lose valuable workers during FMLA leave; to soften the blow, employees are sometimes asked to work from home. This situation can be tricky, causing employers to walk a fine line between productivity and FMLA interference.

In Reilly v. Revlon, a Revlon employee on FMLA leave was given a company laptop, cell phone, and internet access so she could work from home (this entailed responding to calls from her temporary replacement, answering coworkers’ questions, etc.); the plaintiff complained that this request interfered with her protected time off. The Court did not sympathize with this specific situation, stating that “fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights. When limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, employers do not violate the FMLA by making such calls.”[xli] Similarly, the Eastern District Court of Michigan found that calls “regarding documents plaintiff had worked on as well as where those documents were located” did not constitute FMLA interference.[xlii]

Because the case law is still developing, employers should be cautious when assigning work to employees during their FMLA leave. While minimal assignments and questions that would otherwise burden the company seem to be permissible, a jury could find that more substantial projects (e.g. training, data entry, etc.) constitute interference. Employers should provide specific written instructions to an FMLA employee stating that he is not expected to do any work other than what could be deemed to be “professional courtesy” and stick by this statement. If the employee wants to complete projects out of his or her own volition, that is a personal choice. Employers should make an effort to obtain a written statement or waiver from the employee in such cases.



Taking Adverse Action Against employees for taking FMLA leave

Taking adverse, tangible employment action (demotion, termination, failing to promote, reassignment with significantly different responsibilities, benefit reduction, etc.)[xliii] against employees upon their return from FMLA leave is retaliation, and is the number one cause of all FMLA complaints.[xliv] Employers are required to restore eligible employees to the same or equivalent position with equivalent pay, benefits, and working conditions upon their return from leave.[xlv]

If an employee has been designated as a “key employee” in their Rights & Responsibilities Notice, equivalent reinstatement may not be mandatory. A “key employee” is an FMLA-eligible worker who is salaried and “is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed.”[xlvi] In order to deny a key employee equivalent reinstatement, the employer must show that her absence resulted in a “substantial and grievous economic injury” to the company.[xlvii]

What if the employer has a legitimate, nondiscriminatory reason to terminate an employee that is unrelated to the exercise of FMLA rights?

If an employer decides to terminate an employee who has taken FMLA leave, it should proceed with caution. Under the McDonnell-Douglas burden-shifting analysis, the employer bears the burden of demonstrating that an employee would have been laid off or terminated regardless of that employee’s FMLA status.[xlviii] Ultimately, the question of whether the employer had a legitimate reason for employee termination unrelated to FMLA leave is a question of fact. Juries have been known to find that “downsizing” or “restructuring” is actually nothing more than pretext for giving employees on FMLA leave the boot.

To help an employer counter an allegation of pretext and prove that it had a legitimate, nondiscriminatory reason for firing an employee, detailed records of employee performance showing unsatisfactory ratings or disciplinary infractions can be presented. If the situation of legitimate company downsizing arises, any discussions of budget cuts and restructuring should be preserved in writing to show that the termination in question would have been made regardless of any FMLA factors.


Taking the time to understand the FMLA is no easy task, but having a working knowledge of each party’s obligations before a dispute arises can prevent future headaches and litigation.


[i] 29 U.S.C. § 2612(a)(1); 29 C.F.R. § 825.112(a).

[ii] 29 U.S.C. § 2611(4); 29 C.F.R. §§ 825.104-825.109.

[iii] Coleman v. Court of Appeals, __ U.S. __, 132 S.Ct. 1327, 182 L. Ed. 2d 296 (2012).

[iv] 29 U.S.C. § 2611(2); 29 C.F.R. § 825.111.

[v] 29 C.F.R. § 825.101(a).

[vi] 29 C.F.R. § 825.101(c).

[vii] 29 C.F.R. § 825.400(c).

[viii] 29 C.F.R. § 825.105(b).

[ix] 29 C.F.R. § 825.105(f).

[x] 29 C.F.R. § 825.105(f).

[xi] 29 C.F.R. § 825.111(a)(2).

[xii] 29 U.S.C825.311(a).

[xii] Jacob A. Klerman, et. al., U.S. Department of Labor, DOLF 109630906: Family and Medical Leave in 2012: Technical Report (2013), available at

[xii] U.S. Department of Labor, Family and Medical Leave Act regulations: A report on the Department of Labor’s request for information. 72 Fed. Reg. 35550-35638 (June 28, 2007).

[xiii] 29 C.F.R. § 825.311(a).

[xiv] Jacob A. Klerman, et. al., U.S. Department of Labor, DOLF 109630906: Family and Medical Leave in 2012: Technical Report (2013), available at

[xv] 29 C.F.R. § 825.300(b).

[xvi] Fry v. First Fid. Bancorporation, CIV. A. 95-6019, 1996 WL 36910 (E.D. Pa. Jan. 30, 1996).

[xvii] Lichtenstein v. University of Pittsburgh Medical Center, 691 F. 3d 294 (3rd Cir. 2012).

[xviii] 29 C.F.R. § 825.300(d).

[xix] U.S. Department of Labor, Wage and Hour Division, Public Forms, available at and (last visited July 29, 2013).

[xx] 29 C.F.R. § 825.300(b).

[xxi] 29 C.F.R. § 825.300(c).

[xxii] U.S. Department of Labor, Wage and Hour Division, Public Forms, available at (last visited July 29, 2013).

[xxiii] 825.300(d)(1)(4).

[xxiv] 29 C.F.R. § 825.306.

[xxv] 29 C.F.R. § 825.307(a).

[xxvi] 29 C.F.R. § 825.307.

[xxvii] 29 C.F.R. § 825.312.

[xxviii] 29 C.F.R. §825.312(c).

[xxix] 29 C.F.R. § 825.113(b).

[xxx] 29 C.F.R. § 825.113(a).

[xxxi] 29 C.F.R. § 825.113(b).

[xxxii] 29 C.F.R. § 825.113(d).

[xxxiii] 29 C.F.R. § 825.113(c).

[xxxiv] 29 C.F.R. 825.113(c).

[xxxv] 29 C.F.R. § 825.113(d).

[xxxvi] 29 C.F.R. § 825.113(d).

[xxxvii] See Navarro v. Pfizer Corp., 261 F.3d 90, 105 (1st Cir. 2001).

[xxxviii] Terwilliger v. Howard Mem. Hosp., 770 F. Supp. 2d 980 (W.D. Ark. 2011).

[xxxix] 29 C.F.R. § 825.311(a)

[xl] 29 C.F.R. § 825.311(c).

[xli] Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y. 2009).

[xlii] Kesler v. Barris, Sott, Denn & Driker, PLLC, 482 F. Supp. 2d 886, 910-11 (E.D. Mich. 2007).

[xliii] Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998); see also EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999) available at

[xliv] U.S. Department of Labor, Wage and Hour Division, 2008 Statistics Fact Sheet, available at (last visited July 29, 2013).

[xlv] 29 U.S.C. § 2612(c).

[xlvi] 29 U.S.C. § 2614(b)(2); 29 C.F.R. § 825.217(a).

[xlvii] 29 U.S.C. § 2614(b)(1); 29 C.F.R. § 825.216(c).

[xlviii] McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973).

“What Is My Case Really Worth?” Part Two- Family and Medical Leave Act (“FMLA”) Cases

This is the second post in a series I’m working on called “What is My Case Really Worth?”  This post focuses on Family and Medical Leave Act (“FMLA“) cases.  As you may know, the FMLA entitles an employee who has been working with a company for a year or more to twelve weeks of unpaid leave for a serious health condition; to care for a parent, spouse, or child with a serious medical condition; or for the birth, adoption, or beginning of foster care for a child. An employer must employ 50 or more employees within a 75-mile radius of the employee’s workplace for them to fall under the Act.  An employee using FMLA leave is entitled to have their same position (or a comparable position in terms of pay, advancement opportunities, and duties) restored to them upon returning from FMLA leave. Assuming that an employee has a valid FMLA claim as far as liability is concerned, what damages is the employee entitled to under the law?


Back pay is the most often awarded damage in FMLA cases.  There is no cap on back pay.  Back pay includes all of the wages, salary, bonuses, commissions, and benefits (health insurance, 401k, paid time off, life insurance, etc.) lost because of FMLA interference or retaliation minus any amount you earned in the interim.  It also includes interest, overtime, shift differentials, and raises you would have received had you not been terminated.  One thing that is difficult for employees to understand is that your back pay is cut off and stops if you get a new job making the same amount of money (or more) as your old job.  For example, if you are terminated for using FMLA leave on December 1st but get a new job making the same amount or more one week later, you would be entitled to back damages for one week of pay only!  However, if you are unemployed for a year and cannot find a new job, despite your diligent efforts in continuously searching for a comparable job, your back pay would be for one year. Employees have to keep looking for jobs and submitting applications both before and during the pendency of a lawsuit. The continued search for subsequent comparable employment is a crucial part of mitigating the employee’s damages.  And in case you are asking, “how will my old employer even know that I am working now?,” they are going to request copies of your tax returns during the course of discovery and you will be obligated to give these up.

Also worth noting, if you accept a new job but it makes less than your old job, you are still entitled to the difference in wages between your old job and new job to the time that the matter goes to trial. For example if you were making $50,000 per year as a store manager before being terminated, but then two months later find a new job as an assistant manager at a smaller store making $35,000 per year, you would be entitled to back pay for the full two months while you weren’t working, plus $15,000 annually thereafter (the difference between your old and new job) until the matter is resolved. Again, this is all dependent on the employe truly and diligently trying to obtain a new job.


Unlike Title VII and the ADA, the FMLA provides for liquidated damages.  Liquidated damages are kind of like “double damages” because they are typically calculated by multiplying an employee’s back pay times two.  By statute, liquidated damages are assumed for a violation of the FMLA.  However, an employer can avoid liquidated damages if they can prove that the action or omission was in good faith and that they had an objective reasonable ground to believe that the act or omission did not violate the FMLA.  Courts have found that good faith requires proof that the employer took affirmative steps to comply with the FMLA. Liquidated damages are more or less the rule rather than the exception, however, and the burden is on the employer to establish that their actions were taken in good faith.


Although most employees would probably not be too interested in going back to go back to work for the employer that interfered with or retaliated against them for using FMLA leave, reinstatement is indeed an available remedy under the FMLA. Of course this often requires an employer to return to work for an employer that she has possibly filed a lawsuit against, which, as one would probably imagine, would not make for the most comfortable working situation. For this reason, reinstatement is many times not a practical remedy in situations, quite often due to the sheer animosity existing between the parties.

If the Court does not award reinstatement, then the court may instead determine that an award of front pay is appropriate under the circumstances.  Front pay is available at the court’s discretion for employees who are still unemployed and where it appears unlikely that the employee will be able to get a new job for some time into the future.  The court estimates out how long it is likely before the employee could find a new comparable job and awards pay up until that future point in time.  Employees who obtain a subsequent job with the same or higher pay as their old job, are not typically entitled to an award of back pay.


Reasonable attorney’s fees and costs are awarded, if an employee prevails.


One difference between FMLA cases and other types of employment related lawsuits is that the FMLA does not provide for punitive or compensatory damages.  Compensatory damages are also called actual damages and include emotional distress, physical distress, pain and suffering (grief, anxiety, depression, embarrassment), medical bills, and mental impairment.  Punitive damages are commonly referred to as “punishment damages” and punish the company for the wrong-doing, hopefully deterring them from committing the same offenses in the future.  These damages are not permitted under the FMLA (perhaps the trade-off for allowing liquidated damages, as discussed above).  In South Carolina, we do have a state cause of action called “intentional infliction of emotional distress” and employees can sometimes plead this cause of action if they have suffered severe emotional distress.  An action for IIED does not typically have a cap on damages and permits both compensatory and punitive damages. You must have proof of mental suffering (psychiatric treatment notes, etc.) and this cause of action can sometimes open you up to a mental examination from the other side and require retaining expert witnesses, which can be expensive.  However, it is an option if the facts support that an employee has sought significant psychiatric treatment from the employer’s actions.  Not all FMLA cases will support a cause of action for intentional infliction of emotional distress.


Like Title VII and ADA cases, FMLA cases in federal court must be mediated pursuant to District Court of South Carolina rules.  This allows both sides the opportunity to attempt to reach a resolution short of trial, which is anything but certain.


An employee with an FMLA claim may be entitled to back if he or she prevails at trial.  You could also receive liquidated/double damages if the employer cannot put up a good faith reason for interfering with or retaliating against you for using or seeking FMLA leave.  This burden is on the employer and not the employer. Neither compensatory nor punitive damages are recoverable under the FMLA, but attorney’s fees and costs may be awarded at the judge’s sole discretion.

Sexual orientation to become protected class? Wait and see….

Today and tomorrow the United States Supreme Court will hear oral argument on how America defines marriage.   It is unlikely that the final written decision will be issued until June so we will have to wait until then to find out. If the Supreme Court establishes a constitutional right to same-sex marriage, there may be enough public support for Congress to amend employment laws, including Title VII and the FMLA, to prohibit discrimination or retaliation based upon sexual orientation and to amend the definition of “spouse” in the FMLA regulations so that all same-sex married couples are included.  All eyes will be on Justice Kennedy, the swing vote, to see the kinds of questions he poses today during oral argument.  Sometimes you can gauge the direction a decision is likely to go by the types of questions the Justice asks.

Happy Birthday FMLA!

Twenty years ago today, President Clinton signed the Family and Medical Leave Act into law, which went into effect August, 5, 1993, six months later.  The bill was a major part of President Clinton’s agenda in his first term.  In the past twenty years, the FMLA has caused MAJOR headaches for employers.  As reported in a prior blog post, the FMLA provides employees with 12 weeks of UNPAID leave during any 12-month period to attend to a serious health condition of the employee, parent, spouse, or child, or for pregnancy or care of a newborn child, adoption, or foster care of a child.  In order to qualify, your employer has to employ at least 50 people and you have to have been employed for 12 months.

And while the FMLA is seemingly so young at only twenty years old (only one more year before being of legal age to purchase alcohol!… if it were a person and not a statute of course) there is a significant amount of case law that has developed over the past two decades that interpret the Act’s statutory language and the intent of the legislature in enacting it. The different federal circuits have come to differing conclusions on some issues, but have agreed on others. The United States Supreme Court has weighed in on the statutory employee benefit from time to time.

Not to be outdone, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (“NDAA”), which amends the FMLA and broadens its scope to apply to members of the armed services and their families while they are home from deployment. Case law is still developing as to the FMLA amendments, but the changes do not dramatically change the FMLA or its very essence.

Some of my most interesting cases have dealt with FMLA leave when an employer has interfered with or retaliated against an employee for using this leave.   I thought I would highlight the most common complaints I receive about FMLA from prospective clients and then provide a brief synopsis of what you can do if you believe this is happening to you.

1)  Right after my employer found out I am was going to take FMLA leave, they started treating me different.  (i.e., giving me different job duties, making up things I did wrong, isolating me, etc.)

2)  As soon as my employer found I was going to take FMLA and/or as soon   as I returned from FMLA leave, I was fired.  (I call these suspicious timing cases)

3)  Employer never specifically requested medical certification in writing or gave me 15 days to get the certification and then said that I was supposed to do this.

4)  While I was out on FMLA leave, my boss continuously contacted me asking me when I was coming back and checked on my medical status.

First, these are only a BRIEF sampling of some of the ways that employers can retaliate/interfere with your FMLA leave.  Nevertheless, they are some of the more common complaints that I receive.  Regarding 1 & 2, these are what I call “retaliation claims.”  Smart employers know better than to terminate employees right around the time that they take or return from FMLA but they still do it all the time!  Often times, they try to peg the termination on performance deficiencies they believe were present before they even knew you were taking FMLA leave.  Sometimes that is in fact the case and the employee has long-standing performance problems.  But other times, employers try to manufacture performance deficiencies to hide their true motive and we have to flesh these factual disputes out during the process that is called “discovery.”  Regarding 3, an employer can in fact request IN WRITING that you obtain medical certification to substantiate your need for FMLA leave but they must give you 15 days to return the form.  Often times, employers will ORALLY request a certification and this does not comply with the rule.  Then they try to penalize the employee for never obtaining the proper certification when they never complied with the rules in the first place.  Lastly, number 4 is an issue I have in a case I am currently litigating in federal court.  Employers are not allowed to “interfere” with your FMLA leave and this includes actions that would tend to “chill” or deter you from using your leave.  Badgering employees while they are on leave and asking them to check-in on a regular basis, send in weekly status updates, and do even menial work has been held by courts to constitute interference.  If you believe that any of these things are happening to you, you should call an attorney immediately to discuss your rights.  In the meantime, let’s wish the FMLA a happy 20th birthday!

What Kind of Notice Does an Employee Have to Provide to an Employer to Take FMLA Leave?

The FMLA causes confusion among both employers and employees, partly due to the notice requirements that it mandates for both employees seeking to take FMLA leave and for employers that have an employee asking to take leave for reasons that may fall under the protection provided to the employee by the FMLA. To complicate things even more for both employees and employers, new legislation and regulations affecting the FMLA became effective in January 2008 and January 2009, respectively.

This discussion will deal with the notice requirements that an eligible FMLA employee must provide to his or her employer in order to be placed on FMLA leave. This discussion assumes that the employee is an eligible employee under the FMLA and that the employer is an eligible employer under the FMLA.

Time Requirements for an Employee’s Notification of the Need for FMLA Leave

An employee’s obligation to provide notice of the need for FMLA leave differs depending upon whether the forthcoming leave is foreseeable  or unforeseeable in nature. If the leave is foreseeable, such as most leaves are for pregnancy or necessary, but not emergency surgeries, then the employee must provide the employer at least 30 days advance notice before FMLA leave is to begin. It is always a good idea for an employee with the need for foreseeable leave to consult with his or her employer before actually scheduling the medical treatment, if at all possible, so that the treatment can be scheduled for a time when it would not unduly disrupt the employer’s business and operations. If the employee fails to give 30 days notice of foreseeable leave and provides no reasonable excuse for his delay in providing notice, then the employer can delay the employee’s leave for 30 days after when notice is actually provided. This can be a risky course of action for the employer, however, because the employer must make sure that all proper notices of the employee’s right to FMLA leave were provided to the employee in order to delay the leave.

In cases of unforeseeable leave, where providing 30 days notice is not practicable, because of a lack of knowledge of approximately when the leave will be required to begin, a change of circumstances, or a medical emergency, then notice must be given by the employee as soon as practicable. For example, an employee’s health condition may require leave to begin earlier than initially anticipated before the birth of a child, such as in situations where there are unexpected complications related to a pregnancy before the child is actually due. In these situations, employees must give the employer notice of the need for leave “as soon as practicable” – clearly not a black and white guideline. Essentially, “as soon as practicable” means as soon as practical and possible, taking into account all of the surrounding facts and circumstances of the particular case and the particular employee’s condition and reason for leave. Typically, this can be accomplished where the employee provides the employer with notice of the need for leave within the same time frame as he would be required to do so under the employer’s regular guidelines for taking sick or medical leave. In the case of a medical emergency requiring leave, however, advance notice may not be required at all as it would simply be impossible to provide under emergency circumstances.

The Content of the Employee’s Notice of the Need for FMLA Leave

In addition to the time requirements, an employee must provide the employer with sufficient and proper notice of his need for FMLA leave. At a bare minimum, an employee must provide at least verbal notice sufficient to make the employer aware that the employee needs leave that would qualify as FMLA leave, and the anticipated timing and duration of the leave. Essentially, the employee must provide enough information about his need for leave and reasons for needing to take the leave to allow the employer to determine whether or not the requested leave should be classified as FMLA leave.

While the employer must provide sufficient information regarding the reason for his absence, courts have held that an employee does not have to specifically mention or reference the FMLA in connection with his request for leave or specifically state to the employer that he would like to assert his right to take FMLA leave. In other words, there are no magic words required – only that the employee provide enough information to inform the employer that the need for leave would likely qualify as FMLA leave. On the same note, an employee’s failure to comply with an employer’s formal policy (typically contained in an employee handbook), will not prevent the leave from being FMLA protected leave.

In the case of leave for an employee’s own medical condition, the employer may further inquire into the nature of the serious health condition and may even request a medical certification from the employee’s physician to support the employee’s need for leave. An employee has an obligation to respond to an employer’s questions if they are for the purpose of determining whether or not the requested leave is FMLA-qualifying.

Fitness-for-Duty Certifications under the FMLA

Employees taking FMLA leave should be aware that, under certain circumstances, an employer may require an employee to provide a fitness-for-duty certification upon their return to work stating that the employee is physically able to return to their position. As a condition of restoring an employee whose FMLA leave was occasioned by the employee’s own serious health condition that made the employee unable to perform the employee’s job, an employer may have a uniformly-applied policy or practice that requires all similarly situated employees (i.e. same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee’s health care provider that the employee is able to resume work. Under 29 C.F.R. §825.312(a), an employee returning to work from FMLA leave has the same obligations to participate and cooperate in the fitness-for-duty certification process as in the initial FMLA leave certification process.

Essentially, the certification from the employee’s health care provider must certify that the employee is able to resume work. Under the recent revisions to the FMLA, an employer may also require that the certification specifically address the employee’s ability to perform the essential functions of the the job. In order to require these specific certifications, however, an employer must provide an employee with a list of the essential functions of the employee’s job by no later than when the designation of FMLA leave notice is provided by the employer to the employee and the notice must specifically indicate in that the certification must address the employee’s ability to perform those essential job functions. If an employer fails to notify the employee of the requirement for a fitness-for-duty certification upon his return to work from leave, then the employer may not require such a certification from the employee.

An employer may not delay the employee’s return to work for the purpose of clarifying or authenticating a certification with the employee’s health care provider and an employer may not require a second or third opinion on the employee’s fitness to return to work. If an employer provides the proper notice of the requirement of a fitness-for-duty certification to the employee, an employee who does not provide the fitness-for-duty certification upon his return to work or who does not request additional FMLA leave is not longer entitled to reinstatement of his position under the FMLA.

There are some different rules that apply to employees on intermittent or reduced FMLA leave. An employer is generally not entitled to a certification of fitness to return to duty for each absence taken on an intermittent or reduced leave schedule. An employer may require a certification, however, for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his duties, based on the serious health condition for which the employee took such FMLA leave. If an employer chooses to require a fitness-for-duty certification under such circumstances, the employer must inform the employee at the same time it issues the designation notice that for each subsequent instance of intermittent or reduced schedule leave, the employee will be required to submit a fitness-for-duty certification unless one has already been submitted within the last 30 days. A reasonable safety concern means a reasonable belief of significant risk of harm to the individual employee or others. An employer may not terminate the employment of the employee while awaiting such a certification of fitness to return to duty for an intermittent or reduced schedule leave absence.