Complying With the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA), which went into effect on August 5, 1993, provides that an employee in a company with at least 50 employees within 75 miles of that employee's worksite may take up to 12 weeks of unpaid leave to care for a newborn or newly adopted child, a seriously ill family member, or to take care of the employee's own serious health condition.

To the extent health benefits are provided, the employer is required to maintain those benefits while the employee is on leave. Further, the employer is required to restore the employee to the same or similar job when the employee returns to employment at the end of the leave.

This article examines an employer's primary obligations under the FMLA. First, it discusses key FMLA terms and concepts such as who is a covered employer, who is an eligible employee, and what is a serious health condition.

Next, the article examines the interrelationship between the FMLA, the Americans with Disabilities Act, and state workers' compensation laws. Finally, the article discusses the provisions an employer should include in an FMLA policy.

Key FMLA Terms and Concepts

The FMLA allows eligible employees of a covered employer to take unpaid leave or to substitute appropriate paid leave for up to 12 workweeks in any 12 months with the assurance of job restoration. An employee is entitled to FMLA leave for the birth or care of a newborn or newly adopted child, or for the care of a close family member with a serious health condition or the employee's own serious health condition.

Who Is a Covered Employer Under the FMLA?

An employer is covered by the FMLA if the employer engages in an industry activity affecting commerce and employs 50 or more employees for 20 or more workweeks in the current or preceding year. Public agencies as well as public and private elementary and secondary schools are covered employers regardless of their employee number.

Separate corporations are generally viewed as separate employers unless the integrated employer or joint employer tests are satisfied.

Factors that are considered in determining whether two or more entities constitute an integrated employer include common management, interrelation between operations, centralized control of labor relations, and degree of common ownership or financial control.

No one factor is determinative; rather, courts and agencies examine the totality of circumstances to determine if the corporations amount to an integrated employer.

Where two or more entities are determined to comprise an integrated employer, the number of employees working for those entities will be added together for the purpose of ascertaining FMLA employer coverage and employee eligibility.

Two or more employers may be established as joint employers when an employee simultaneously performs work that benefits two or more employers at different times during the workweek and those employers exercise some degree of control over the employee's workweek or conditions of work.

Factors that are considered in identifying whether two or more employers are joint employers include whether the employers have arranged to share employees' services or to interchange employees; whether one employer acts directly or indirectly in the interest of the other employer(s) in relation to employees; and whether employers share control of employees because one employer controls, is controlled by, or is under common control with the other employer(s).

Whether a joint employment relationship exists will depend on the totality of the relationship and not on any one factor. Generally, the duties and obligations imposed by the FMLA are the responsibility of the primary employer.

The criteria for determining which entity is the primary employer include which entity has the authority to hire and fire; which entity assigns and places the employee; and which entity pays and provides benefits to the employee.

Only employees who are employed within the District of Columbia or any state, territory, or possession of the United States are included within the count to determine if an employer employs 50 or more employees.

Employees on paid and unpaid leave are included in the count as long as the employer has a reasonable expectation that these employees will return to active employment. Part-time employees are also included in the count, while employees on layoff, whether temporary or permanent, are not included.

Who Is an Eligible Employee Under the FMLA?

To be eligible for FMLA leave, an employee must be employed for at least 12 months by the employer. The 12 months do not have to be consecutive. Further, an employee must provide at least 1,250 hours of service to the employer during the 12-month period immediately preceding the commencement of the leave.

When seeking to establish an employee as ineligible for FMLA leave, the employer has the burden of proving that the employee has not worked the required number of hours during the preceding 12 months.

Therefore, it is important that an employer maintain a record of actual hours worked by its employees.

Example: A district court has held that in determining whether an individual is an eligible employee under the FMLA in terms of performing the required 1,250 "hours of service" during the previous 12-month period, the same principles as those used under the Fair Labor Standards Act should be applied. Under those standards, an employee only receives credit for FMLA "hours of service" for those hours actually worked, which does not include paid vacation, sick time, or unpaid leave.

The court concluded that in the case presently before it, the employee did not work 1,250 hours during the year preceding her extended leave of absence, therefore she was not protected by the FMLA. Robbins v. Bureau of Nat'l Affairs Inc., 896 F. Supp. 18 (D.D.C. 1995)

Another requirement for FMLA eligibility is that an employee must be employed at a worksite where 50 or more employees are employed within 75 miles of that worksite.

Example: A district court held that an individual was not an "eligible employee" under the FMLA because he worked at a worksite where the employer employed fewer than 50 employees, and the total number of employees employed by the employer within 75 miles of the worksite was fewer than 50. Muller v. Hotsy Corp., 917 F. Supp. 1389 (N.D. Iowa 1996)

When Is an Eligible Employee Entitled to FMLA Leave?

An eligible employee is entitled to 12 workweeks of unpaid leave during any 12-month period for any one or more of the following reasons:

1. to give birth or to care for an infant son or daughter;
2. to care for a child placed with the employee for adoption or foster care;
3. to care for the employee's spouse, son, daughter, or parent who has a serious health condition; or
4. to address the employee's serious health condition making the employee unable to perform his or her job.

Example: The FMLA protects an employee's job who takes time off to care for certain family members who are sick. The FMLA does not provide protection for an employee who fails to return to work after the death of a relative. The FMLA is also not intended to give an employee time off to care for a deceased relative's affairs. (Employee did not return to work until almost a month after his father died -- employee not protected by FMLA.) Brown v. J.C. Penney Corp., (No. 95-0707-CV D.C. Fla. 1996)

Entitlement to leave under (1) or (2) expires at the end of the 12-month period beginning with the birth or placement of the child. The employee must conclude leave under (1) or (2) within that 12-month period.

For purposes of FMLA entitlement, spouse, parent, son, and daughter are defined as follows: A spouse includes a common law spouse where recognized under applicable state law. A parent includes a biological parent and an individual who stands or stood in loco parentis, which means in the place of a parent, i.e., with a parent's rights, duties, and responsibilities. A parent does not include in-laws.

A son or daughter includes a biological, adopted, or foster child, a stepchild, legal ward, or a child of a person standing in loco parentis if under the age of 18. A son or daughter also includes a child 18 or over if that person is incapable of self-care because of a mental or physical disability.

To receive FMLA protection, an employee must provide the employer with sufficient information to reasonably apprise the employer of the employee's FMLA leave entitlement.

Example: A district court held that even if an employee was able to prove that his son suffered from a "serious health condition," the employee's failure to demonstrate that his words or actions placed the employer on notice of such illness precluded FMLA protection from attaching to his absence from work.

Although the stated reason for his leave was a matter of "significant financial importance," the employee argued that he mentioned his son's illness to his employer and the employer was aware of his son's asthmatic condition.

The court found, however, that the employee was required to show at a minimum the employer's understanding of these "oblique references." Further, the court held that an employer's duty to inquire is not triggered solely by an employer's knowledge of past medical events under the FMLA.

The employee must first give sufficient notice to the employer of the medical need for requested leave. Although not obligated to specifically invoke the FMLA, the employee in this case should have mentioned his son's illness in his leave request in order to give proper notice to his employer. Johnson v. Primerica, No. 94 Civ. 4869, 1996 WL 34148 (S.D.N.Y. Jan. 30, 1996)

Example: The United States Court of Appeals for the Fifth Circuit announced that the FMLA and its attendant regulations do not require an employee to invoke the language of the statute or expressly mention the Act to gain its protection when notifying an employer of the need for leave for a "serious health condition."

The court concluded that it would not announce any firm guidelines for what constitutes proper notice, but rather would evaluate on a case-by-case basis whether an employee gave an employer sufficient information to reasonably apprise the employer of the employee's request for FMLA leave.

In this case, the employee adequately informed her supervisor of the need to miss work for medical reasons (complications arising from treatment of ingrown toenail). Manuel v. Westlake Polymers Corp., 66 F.3d 758 (5th Cir. 1995)

Example: A district court entered judgment for an employer with regard to an employee who claimed that the employer terminated her employment in violation of the FMLA. The court concluded that the employee, who contracted chicken pox and required hospitalization, failed to provide adequate notice of her need to take FMLA qualifying leave.

The employee did not inform her employer that she was under the continuing treatment of a healthcare provider for her chicken pox. Also, the employee did not inform her employer that she received inpatient care at a hospital because of her chicken pox.

The court also concluded that the employee's failure to report periodically to the employer about her status at the employer's reasonable request prevented FMLA protection for her leave. Under the FMLA, the employer was permitted to require its employee to report periodically on her status and intent to return to work.

The employee did not inform her employer of her status or intent on November 22, 23, 24, and 29 even though the employer asked the employee to bring in a doctor's slip on November 22. This failure to update her employer regarding her status and intent to return to work provided an independent ground to terminate the employee's employment. Reich v. Midwest Plastic Engineering, Inc., 1995 WL 514, 851 (W.D. Mich. 1995)

What Is a Serious Health Condition?

A serious health condition includes an illness, injury, impairment, or physical or mental condition that involves inpatient care, i.e., an overnight stay in a hospital, hospice, or residential medical care facility.

A serious health condition also includes an impairment or condition that involves a period of incapacity or any subsequent treatment in connection with that inpatient care, as well as continuing treatment by a healthcare provider which includes one or more of the following:

1. any period of incapacity of more than three consecutive calendar days and any subsequent treatment or period of incapacity relating to the same condition that also involves (a) treatment two or more times by a healthcare provider, or (b) treatment by a healthcare provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the healthcare provider;
2. any period of incapacity due to pregnancy or prenatal care;
3. any period of incapacity or treatment for incapacity due to a chronic serious health condition which requires periodic treatment visits to a healthcare provider or assistant under direct supervision of such a provider, (b) continues over an extended period of time, and (c) may cause episodic rather than a continuing period of incapacity;
4. any period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective;
5. any period of absence to receive multiple treatments (and recovery from those treatments) by a healthcare provider or provider of healthcare services (by order or referral) either for restorative surgery or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment.

Example: A district court ruled in favor of an employer where an employee did not present medical evidence that her asthmatic daughter suffered from a serious health condition or was incapable of self-care.

The employee specifically failed to present evidence establishing that her daughter required either inpatient care or continuing treatment. Alleging that the child was required to stay in bed, without more, was insufficient. Sakellarion v. Judge & Dolph, Ltd., 893 F. Supp. 800 (N.D. Ill. 1995)

Example: A district court ruled that an employee's child's ear infection did not qualify as a "serious health condition" under the FMLA. The court determined that the ear infection was not as severe as any of the illnesses listed as serious health conditions in the FMLA legislative history.

Treatment of the ear infection consisted of one 20-minute examination by a physician and a 10-day regimen of antibiotics with no attendant ear pain, hospitalization, or surgical intervention. Seidle v. Provident Mut. Life Ins. Co., 871 F. Supp. 238 (E.D. Pa. 1994)

Example: A district court held that although an employee's gastroenteritis and upper respiratory infection were not considered serious health conditions under the FMLA, the employee's child's throat and upper respiratory infection were serious health conditions entitled to FMLA protection.

Further, the court held that because the employee gave the employer adequate notice of the need for FMLA leave to care for her sick child, the employee was improperly terminated for excessive absenteeism.

Based upon the Department of Labor regulations, the district court offered the following bright line test for qualifying an illness as a serious health condition: "If an employee is (1) incapacitated for more than three days, (2) seen once by a doctor, and (3) prescribed a course of medication, such as an antibiotic, she has a serious health condition with FMLA protection."

The court held that the employee in this case was unable to prove that her absence from work was because of a serious health condition because there was no indication she was incapacitated for more than three days.

The court found, however, that the employee's daughter was incapacitated for a period of more than three days since the doctor instructed the employee to keep the child home as long as she had a fever and, thus, that the child's condition constituted a serious health condition under the FMLA. Brannon v. Oshkosh B'Gosh, Inc., 897 F. Supp. 1028 (M.D. Tenn. 1995)

Treatment includes examinations undertaken to determine the existence of a serious health condition and evaluations of that condition. It does not include "routine" physical, dental, or eye examinations.

A regimen of continuing treatment includes a course of prescription medication or therapy requiring special equipment to resolve or alleviate the condition. Self-initiated activities such as taking over-the-counter medications or bed-rest, for example, are not sufficient, by themselves, to constitute a regimen of continuing treatment.

Substance abuse may be a serious health condition. If the employee's condition meets the definition of a serious health condition, then the individual may take FMLA leave for treatment by a healthcare provider or a provider of healthcare services (on referral).

However, an employer is not precluded from taking disciplinary action simply because the individual who is abusing a substance is on FMLA leave. Although an employer cannot retaliate against an employee for taking FMLA leave, that leave is not a shield for an employee to use in order to avoid discipline or discharge for violating the employer's work rules and substance abuse policy.

An employee's absence because of his or her abuse of drugs, alcohol, or other substances does not qualify as FMLA leave.

What Are the Entitlements of an Employee on FMLA Leave?

An employee on FMLA leave is entitled to continuing health benefits as if he or she was working instead of taking leave. An employee generally has a right to return to the same position or an equivalent position with equivalent pay, benefits, and working conditions at the conclusion of the leave.

The restored employee is not entitled to rights or benefits greater than what the employee would have been entitled to receive if he or she had not taken the leave.

Example: A district court ruled in favor of an employer where the employee's FMLA claim was premised upon the employer's refusal to provide the employee with assurances that, upon her return from maternity leave, her position would have some permanence.

The court held that the FMLA does not grant an employee the right to assurances of permanent employment or to assurances that a certain position will have some permanence to it where the employee was not entitled to such assurances before she took maternity leave.

The FMLA expressly states that no restored employee is entitled to any rights, benefits, or positions to which the employee would not have been entitled had he or she not taken the leave. Lempres v. CBS, Inc., 916 F. Supp. 15 (D.D.C. 1996)

May the Employer Require That the Employee Prove the Leave Is Due to a Serious Health Condition?

An employer may require an employee to submit written certification from a healthcare provider to substantiate that his or her leave is due to a serious health condition of the employee or the employee's immediate family member. An employee's failure to comply with this requirement may cause an FMLA leave to be delayed. (Wage-Hour Division's certification form (WH-380).

An employer also may require an employee to present a certification of fitness to return to work when an absence is caused by the employee's serious health condition, PROVIDED THAT the employer acts pursuant to a uniformly applied policy. An employer may delay the restoration of an employee to employment until the employer receives the certification of fitness.

Example: A district court refused to grant an employer's motion to dismiss a case because factual issues existed as to whether an employee failed to provide certification to the employer that he was "fit" to return to his job as required under the FMLA. The court stated that the term "fit for duty" means that the individual is able to perform the essential functions of his position.

Apparently, the employee's certification form in this case also provided for some limitations on his physical activities, and thus the employer claimed that the employee was not really able to return to work. The court determined that whether certain duties that the employee was unable to perform upon returning to his job were essential elements of his job was a question of fact precluding dismissal. McGinnis v. Wonder Chemical Co., No. Civ. A. 95-4384, 1995 WL 756590 (E.D. Pa. Dec. 21, 1995)

What Notice Requirements Are Imposed on Employers Under the FMLA?

Employers have specific notice requirements under the FMLA. They must post a notice explaining the FMLA and providing information about procedures for filing a complaint under that Act.

Example: An employer who fails to post a notice regarding FMLA rights may be estopped from asserting that the employee failed to furnish the employer with proper notice of his or her need to take FMLA leave. Hendry v. GTE North, Inc., 896 F. Supp. 816 (N.D. Ind. 1995)

If an employer has written employee guidance such as a handbook, information about the employee's entitlements and obligations under the FMLA must be included in that guidance. Written guidance on the FMLA must be provided even if there is no handbook. The Wage-Hour Division has prepared a fact sheet containing the necessary information to be included in such guidance.

Additional written notice on FMLA protection must be provided to an employee generally within two business days of an employee's request for leave. This notice must inform the employee of the specific expectations and obligations of the employee and possible consequences under the FMLA.

Example: A district court denied an employer's motion to dismiss an employee's claim that the employer's notice to employees concerning employer's FMLA policies, which was set forth in the employee handbook, was inadequate and misleading.

The employee claimed that the employer failed to notify her that her first 12 weeks of approved family leave was designated FMLA leave and that her right to reinstatement to the same or a comparable position pursuant to the FMLA expired at the end of that period.

The employee also claimed that this inadequate notice misled her into requesting an additional four weeks of leave offered by the employer. When the employee returned to work, she was not reinstated to her former position as head teller, but rather was placed into a teller's position with less responsibility.

A month later, the employee resigned, citing the employer's failure to place her in the same or comparable position upon her return from leave. The court held that the employer's failure to notify employees of the impact of its family leave policies on rights provided by the FMLA, especially where there is an apparent conflict, can constitute interference with the employee's FMLA rights if it causes the employee to unwittingly forfeit her FMLA protection. Fry v. First Fidelity Bancorporation, 1996 WL 36910 (E.D. Pa. 1996)

How Is the 12-Month Period Determined During Which the Employee MayTake 12 Workweeks of Unpaid Leave?

An employer may choose one of the following four methods for determining the 12-month period in which the 12 weeks of leave entitlement occurs:

• calendar year;
• any fixed 12-month leave year (e.g., fiscal year, employee anniversary date);
• a 12-month period measuring forward from the time leave begins; or
• a rolling 12-month period measuring backward from the date an employee uses any FMLA leave.

The method must be applied "consistently and uniformly" to all employees.

If an employer fails to select one of these methods, an employee may select the method that is the most beneficial to the employee.

Example: An employer failed to inform an employee of the method that the employer intended to use to calculate the 12-month period during which the employee could take FMLA leave. As a result, the court allowed the employee the benefit of the most favorable calculation under the Act (running from the employee's employment anniversary date of April 12, 1994).

The court rejected the employer's argument that the employee received all of the FMLA leave to which the employee was entitled from February 5, 1994, through May 2, 1994. McKiernan v. Smith-Edwards-Dunlap Co., 66 EPD 43, 686 (E.D. Pa. 1995)

An employer desiring to change from one method of leave period calculation to another must provide at least 60 days' notice to all employees. Furthermore, in the year of transition, the employer must allow employees to retain the benefit of 12 weeks' leave under whichever method affords the employee the greatest benefit.

The rolling 12-month method is likely to be the best method for preventing an employee from taking 24 weeks of FMLA leave successively at the end of one 12-month period and at the beginning of another.

Who Is a Healthcare Provider Under the FMLA?

A healthcare provider is defined as:

• a doctor of medicine or osteopathy authorized to practice by the state.
• any other person determined by the Secretary to be capable of providing healthcare services, which includes only:
• • podiatrists, dentists, clinical psychologists, optometrists, and chiropractors;
  • nurse practitioners, nurse midwives, and clinical social workers;
• Christian Science practitioners listed with the First Church of Christ, Scientist, in Boston, Massachusetts.
• any healthcare provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.
• a healthcare provider listed above who practices and is authorized to practice in a country other than the United States.

What Is Intermittent Leave or Reduced Leave Schedule and What Are the Applicable Rules?

Intermittent leave is leave taken in separate blocks of time due to a single illness or injury. Reduced leave schedule is a leave schedule that reduces the usual workday or workweek of the employee. Only the time actually taken is charged against the employee's entitlement of 12 weeks of unpaid leave.

Intermittent or reduced leave schedule for the birth, placement, adoption, or foster care of a child can be taken only if the employer and employee agree. The employer's agreement is not necessary if such leave is taken because of a serious health condition resulting from birth.

Intermittent or reduced leave schedule to care for a spouse, child, or parent because of a serious health condition or the employee's serious health condition may be taken without the employer's agreement if it is medically necessary.

The employee must give 30 days' notice of the need for intermittent or reduced leave to the employer or as much notice as is practicable. Employees needing intermittent or reduced leave schedule must attempt to schedule leave so as not to disrupt the employer's operations.

An employer may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee's leave.

Do Special Rules Apply When Both Spouses Are Eligible for FMLA Leave?

Yes. If both spouses are eligible for FMLA leave and are employed by the same covered entity, the employer can limit their leave to a combined total of 12 weeks during any 12-month period if the leave is for:

• the birth, placement, or care afterwards of a son or daughter; or
• the care of the employee's parent with a serious health condition.

Each spouse is entitled to 12 weeks of leave for their own serious health condition.

What Are the Rules That Apply to Paid vs. Unpaid Leave?

If an employee has accrued paid leave available, he or she may choose to substitute it for an equal amount of FMLA leave. An employe may also require an employee to substitute such paid leave.

Who Is Responsible for Designating Leave As FMLA Leave?

Employers are responsible for designating leave as FMLA leave and giving notice of the designation to employees. When an employer has insufficient information upon which to make a decision, the employer can inquire further of the employee (or the employee's spokesperson, for example, if the employee is incapacitated).

An employee notifying his or her employer of the need for unpaid FMLA leave must provide reasons for the leave so that the employer can determine if the leave qualifies under the FMLA.

Once an employer knows that leave is for an FMLA reason, the employer must within two business days, absent extenuating circumstances, notify the employee that the leave will be counted as FMLA leave and whether paid leave will be substituted for unpaid leave.

Notice that leave has been designated as FMLA leave may be given orally or in writing. If oral, notice must be confirmed in writing by the next payday (if less than one week after oral notice, then by the subsequent payday).

At what point the employer knew to determine whether leave was for an FMLA purpose is the key to deciding when FMLA leave begins.

As a general rule, an employer cannot designate leave as FMLA leave after an employee returns to work. There are two exceptions:

1. if the employer did not learn the FMLA reason for the absence until the employee's return to work; or
2. if the employer either knows the reason for the leave but cannot confirm that the leave qualifies under FMLA or the requested medical certification has not been received.

What Rules Apply to an Employer's Right to Obtain Medical Certifications?

• An employer may require certification from an employee's (son's, daughter's, spouse's, or parent's) healthcare provider to substantiate a request for leave due to a serious health condition.
• An employer must give written notice of a requirement for medical certification,
• The employee must have at least 15 days to provide the certification.
• The Department of Labor provides a form for certification or second or third opinions.
• An employer may require a second opinion at its expense. The healthcare provider designated to give the second opinion cannot be employed on a regular basis by the employer.
• If the two medical opinions differ, an employer may require a third opinion from a jointly approved healthcare provider approved by the employer and employee. This opinion is at the employer's expense and is final and binding.
• An employer must reimburse an employee for reasonable out-of-pocket travel expenses incurred to obtain the second and third medical opinions.

What Rules Apply to Benefit Continuation for Employees on FMLA Leave?

During an employee's FMLA leave:

• The employer must maintain the employee's coverage under any group health plan as if the employee was continuously employed. The same group health benefits provided to the employee prior to FMLA leave must be maintained during that leave. However, the employee is subject to changes that apply to all employees.
• An employer must provide notice to an employee on FMLA leave of the opportunity to change plans and benefits if the employer provides such change opportunities to all other employees.
• The obligation to maintain an employee's health benefits ceases if and when the employment relationship would have terminated if the employee was not on FMLA leave.
• An employee's entitlement to other benefits while on FMLA leave is determined by the employer's policy for providing those benefits when the employee is on another form of leave.
• An employee must continue to pay his or her share (if any) of group health plan premiums during FMLA leave. If the employee fails to make timely health plan premium payments such that the premium payment is more than 30 days late, the employer's obligation to maintain health insurance ceases unless the employer has no established plan providing for a longer grace period.
• An employer must provide written notice to the employee that payment was not received at least 15 days before coverage is to cease. If coverage lapses, an employer must restore coverage benefits upon the employee's return to work at the conclusion of the FMLA leave.

May an Employer Recover Costs of Maintaining a "Group Health Plan" or Other Benefits Upon an Employee's Failure to Return to Work?

Generally, an employer can recover its share of health plan premiums from an employee if the employee fails to return to work at the conclusion of FMLA leave. An employer cannot recover premiums, however, if the employee's failure to return was caused by:

• the continuation, recurrence, or onset of a serious health condition of the employee or family member for which the employee would be entitled to take FMLA leave; or
• "other circumstances beyond the employee's control."

If the employer elects to continue other benefits during the leave, at the conclusion of the leave, the employer can only recover the costs for paying the employee's share of any premiums, whether or not the employee returns to work.

"Returned to work" means:

• returning to work for at least 30 days; or
• retirement.

Paid leave results in no recovery for the employee's premiums during the period of paid leave.

What Are the Employee's Rights If the Employee Believes His or Her Rights Have Been Violated?

An employee believing that his or her FMLA rights have been violated has the right to file a complaint with the local office of the federal Wage and Hour Division of the DOL, or to file a private lawsuit within two years after the last alleged violation of the FMLA (three years if alleged violation is willful).

Damages may include wages, benefits, other compensation denied or lost, actual monetary losses sustained, interest, back pay (the determined amount of which may be doubled if the employer's FMLA violation was willful), equitable relief (including employment, reinstatement, and promotion) and reasonable attorneys' fees, reasonable expert witness fees, and other costs of the action.

Example: A district court held that the FMLA does not provide for punitive damages. Additionally, the court found that damages suffered due to loss of job security and resulting mental distress are not recoverable under the FMLA because they do not constitute "other compensation" as specified under the Act. McAnnally v. Wyn South Molded Products, Inc., 912 F. Supp. 512 (N.D. Ala. 1996)

May Management Employees Be Personally Liable for an Employer's Violation of the FMLA?

The FMLA defines an employer as follows:

1. . . . any person engaged in commerce or in any industry . . . who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;
2. and includes --
3. 1. any person who acts directly or indirectly, in the interest of an employer to any of the employees of such employer . . . .

The courts are split on whether management employees may be personally liable for an employer's willful FMLA violation. One court began its analysis by noting that the FMLA definition of "employer" tracks the definition used by the Fair Labor Standards Act. Thus, the court looked to the FLSA to interpret the term "employer" under the FMLA.

The court found that under the FMLA, corporate officers with "operational control" over an employing company clearly fall under the term employer, including those defendants who, although not exercising exclusive control over the day-to-day affairs of the employer, possess control over the aspect of employment alleged to have been violated.

Example: A district court held that the term "employer" under the FMLA should be construed the same as that term is construed under Title VII, and as such, the term "employer" does not permit liability against individual defendants who are not otherwise "employers." Frizzell v. Southwest Motor Freight, Inc., 906 F. Supp. 441 (E.D. Tenn. 1995)

Example: A district court held that an employee's immediate supervisor, as well as the supervisor's overseer and the employer's Vice President of Human Resources, maintained sufficient control over the employee's ability to take FMLA protected leave to be considered "employers" under the Act. These individuals may be individually liable to the employee for violation of the FMLA.

The court distinguished the definition of employer under the FMLA from the definition in the ADA and Title VII. However, the employee's temporary supervisor did not exercise such control and thus was not considered an FMLA employer. Freemon v. Foley, 911 F. Supp. 326 (N.D. Ill. 1995)

The Interrelationship Between Workers' Compensation, the ADA, and the FMLA

Serious Health Condition

The term "serious health condition" under the FMLA is defined much more broadly than the ADA's definition of a disability.

• Whether or not an ADA "disability" is a "serious health condition," or vice versa, depends upon the nature of the condition and/or disability.
• The FMLA does not apply to persons with "perceived disabilities" or merely a "record of impairment" while the ADA does apply to such persons.

Workers' compensation injuries can also qualify as an employee's serious health condition.

Covered Employees

The coverage of the FMLA is narrower than the coverage of the ADA. Employees are eligible for FMLA coverage only if they are employed by an employer employing 50 or more employees working within 75 miles of an employee's worksite. The ADA applies to employers with 15 or more employees.

Exhaustion of FMLA Leave

Where an employee has exhausted FMLA leave in a given FMLA year on the basis of his or her own serious health condition or that of a family member, there is no impact on the employee's rights under workers' compensation or the ADA.

Where an employee has not exhausted his or her FMLA leave prior to commencing a workers' compensation disability or ADA leave, the employer should designate the employee's leave as FMLA leave at the commencement of the employee's workers' compensation disability or ADA leave.

Examples of problems that can result from an employer's failure to properly designate a workers' compensation or ADA leave as FMLA leave include:

• a request for 12 weeks of FMLA leave after the workers' compensation or ADA claimant is capable of returning to some duty;
• improper failure to hold the injured worker's job open for the 12-week FMLA period;
• failure to extend paid health benefits.

Other Differences Between the FMLA, ADA, and Workers' Compensation

Designation of Accrued Leave As FMLA Leave

• An employer may designate workers' compensation leave or leave taken as a reasonable accommodation under the ADA as FMLA leave.
• An employer cannot, however, require an employee to utilize accrued, paid leave for FMLA leave during the time that the employee is receiving disability payments or workers' compensation benefits.

Care of Others

• Unlike the ADA or workers' compensation, the FMLA may be applied in situations involving the care of certain family members and adoption or placement of foster children.

Hardship

• The ADA limits an employer's obligations in instances where the accommodation may produce an undue hardship.
• The FMLA does not recognize "undue hardship." However, under certain circumstances the FMLA recognizes the concept of a "key employee." This definition is, however, very difficult for an employer to meet.

Intermittent Leave, Reduced Schedules, and Light Duty

The ADA authorizes intermittent leave and reduced schedules to allow an employer to meet its statutory obligations. The employer must allow for such leave only after certification that the accommodation would enable the employee to perform the essential functions of the job. The undue hardship defense is available to the employer.

Under the FMLA, an employer must grant an employee an intermittent or reduced leave if there is a showing of medical necessity for the employee's own serious health condition. The undue hardship argument is not available to the employer.

Under the ADA, an employer can assign an employee who requires intermittent or reduced leave to an alternative position with reduced pay and benefits.
Under the FMLA, an employee who returns to work and is assigned to an alternate position must receive equivalent pay and benefits.

Under the FMLA, employees have no obligation to accept light duty work because light duty is not deemed to be equivalent to the employee's previous job. Under workers' compensation, an employee's refusal of a light duty assignment may result in termination of wage loss compensation benefits.

Medical Inquiries

The ADA allows job-related questions consistent with business necessity. The FMLA does not involve any prognosis of return to work. It merely permits employers to ask whether a serious health condition prevents the performance of an essential function of the job.

Both the ADA and FMLA allow for a certification of an employee's fitness for duty. Workers' compensation allows for medical inquiries relating to all aspects of the employee's injury such as history, treatment, and prognosis.

Part-time Workers

The ADA and workers' compensation apply to part-time workers. The FMLA requires 12 months of work and at least 1,250 hours of work during the previous 12 months.

Time Limits

The ADA has no time limit for leave except for a claim of undue hardship by the employer. FMLA leave is limited to 12 weeks. Frequently, there are no time limits for workers' compensation leave.

No-Fault Attendance Policies

No-fault leave may be applied to workers' compensation claimants. FMLA leave or leave granted for a reasonable accommodation pursuant to the ADA cannot be counted as part of the no-fault leave. Any FMLA policy should provide that FMLA leave will not be counted against the employee.

Provisions to Include in an FMLA Policy

As previously noted and as the foregoing summary suggests, the FMLA is a highly complex body of law that mandates careful attention to detail. We, therefore, recommend that employers adopt a written FMLA policy to ensure consistent treatment of all employees, satisfy the employer's obligations under the law, and notify employees of their rights.

As noted previously, employers are required to provide written guidance about the FMLA to their employees and to include information regarding an employee's entitlements and obligations under the FMLA in the employer's handbook or manual, if there is one.

Prior to drafting an FMLA policy, employers should examine their absentee control policy, disability policies, and health plans to ensure that they coincide with their FMLA policy. A good FMLA policy will contain, at a minimum, the following components:

1. Statement identifying the basic eligibility requirements;
2. Statement identifying the reasons that an employee may take leave;
3. Requirement that employees provide 30 days' notice of the need for leave if the need is foreseeable (if not foreseeable, then require notice as soon as practicable);
4. Requirement that employees provide medical certification (and notice of the ramifications for failure to do so);
5. Requirement that employees report the status of their condition during the course of their leave;
6. Statement identifying whether the leave is paid or unpaid and whether accrued paid vacation, personal, or family leave must be substituted for unpaid FMLA leave;
7. Statement regarding entitlement to health benefits and the employee's obligation regarding payment for those benefits;
8. Statement of exemption for highly compensated employees;
9. Statement regarding the employee's right to take intermittent and reduced schedule leave;
10. Requirement for a return-to-work medical certification;
11. Identification of the method by which the 12-month FMLA period will be calculated.