The Family and Medical Leave Act requires employers with 50 or more employees to offer up to 12 weeks of unpaid leave to employees who have worked for the employer for 12 months and for 1,250 hours during the 12 months preceding the leave. With minor exception, employers must preserve the employee's position for the duration of the leave. Several recent court decisions interpreting the Family and Medical Leave Act have further narrowed an employee's ability to prevail in FMLA actions and have further leveled out the playing field between employers and the employee-friendly FMLA.
State Is Immune From FMLA Claim
In a recent decision, the Eleventh Circuit, which governs the states of Florida, Alabama and Georgia, ruled that a state employee may not sue her employer for violations of the FMLA when such a claim is based on the employee's own serious health condition.
The law has long recognized that each state is a sovereign entity and cannot be sued by an individual without its consent. Under certain circumstances, however, Congress can pass laws which give individual citizens a right of action in federal court against an unconsenting state.
In Garrett v. University of Alabama at Birmingham Board of Trustees, Plaintiff Patricia Garrett worked for the University and was diagnosed with breast cancer. Garrett underwent surgery and continuing treatment. Upon doctor's orders, Garrett went on family and medical leave for her own serious health condition in March of 1995. When she returned, the University demoted her and reduced her salary. Garrett claimed that the University violated the FMLA by not properly reinstating her to her same or equivalent position.
Garrett relied upon the FMLA's definition of employer, which includes states, in her effort to overcome the presumed immunity of the state. In a decision lacking a clear rationale, the Eleventh Circuit Court of Appeals ruled that although a state might not be immune from suit under certain other provisions of the FMLA, a state is immune under the FMLA when a claim is based on the employee's own serious health condition. The court summarily noted that the bases for removing the cloak of immunity were not sufficiently related to the provision allowing leave to an employee with a serious health condition to permit Garrett's suit to proceed.
Notice of Amount of FMLA Leave Irrelevant Where Employee Was Unable To Return To Work
In Sarno v. Douglas Elliman-Gibbons & Ives, Inc., Plaintiff Michael Sarno sued his employer under the FMLA alleging that his employer terminated his employment without giving him notice of the amount of leave to which he was entitled under the FMLA. Sarno was a payroll administrator who fell at work in March of 1995 aggravating a pre-existing hernia injury. Sarno went out on workmen's compensation leave which his employer informed would be treated as unpaid FMLA leave. Upon the expiration of the FMLA, Sarno advised that he was still disabled. Sarno was advised that his leave had expired, that his position needed to be filled, and that his employment was terminated. Sarno claimed that his termination without notice that he was not entitled to more than 12 weeks of leave under the FMLA violated the Act.
The Second Circuit Court of Appeals, which governs the states of New York, Connecticut and Vermont, dismissed Sarno's claim ruling that Sarno's right of reinstatement could not have been affected by the lack of notice since it was his own disability, rather than the lack of notice, which kept him from returning to work after 12 weeks. The court also noted that Sarno had received all the benefits he was entitled to under the FMLA and that it was rather speculative whether under the FMLA or its regulations, Sarno was entitled to such explicit notice in any event. The court, however, did note that its decision was limited to circumstances concerning an employee's own serious health condition and did not extend to the other bases for leave under the FMLA.
The court's ruling is essentially one of "no harm, no foul." The decision interestingly takes the view that there was no violation in failing to provide the notice alleged since the employee was unable to return to work at the end of the leave. This decision begs the question of what would the court have done had Sarno been able to return to work, but did not do so because he was unaware of the duration permitted by the FMLA. The Sarno case is tempered by the fact that Sarno's employer at the very least notified Sarno that his leave had expired and inquired about his return before terminating Sarno. But, what would have happened if the company had just notified Sarno of his termination for failing to return?
Perhaps the best legal answer is taken directly from the court's own decision where it noted that neither the FMLA nor its regulations appears to require such specific FMLA notice. The better practice, however, is to have a standard FMLA designation form which advises employees that they may take up to 12 weeks of leave for their condition under the FMLA. The Department of Labor, in fact, has distributed a designation form which contains this language. It is critical to keep in mind that the employer has the duty of designating leave as FMLA leave in any event. The additional step of advising an employee in a single sentence that his/her leave may extend for a period of 12 weeks, therefore, is not an onerous one when compared to the time and money required to defend a claim.
Failure To Provide FMLA Leave Not Actionable Where Employee Unable To Return To Work
In Reynolds v. Phillips & Temro Industries, Inc., Plaintiff Reynolds was a shipping attendant who was involved in a car accident on his way to work on January 8, 1996. His physician provided him with an authorization for absence form excusing him from work for that week and Phillips excused Reynolds. Reynolds sought another such authorization for the week of January 15, 1996 which Phillips contended it never received. Reynolds secured a third authorization for the week of January 22, 1996. When he called Phillips to inform them of the third authorization, Reynolds was informed that he had been terminated on January 18, 1996 pursuant to a company policy of automatic termination after 3 consecutive no shows/no calls.
Reynolds alleged that he could have returned to work on January 29, 1996 if Phillips had given him FMLA leave and not terminated him. At that time, however, Reynolds' physician had significantly restricted Reynolds rendering him incapable of performing the essential functions of his job. Reynolds continued to have significant work restrictions until March of 1997. The Eighth Circuit Court of Appeals, which governs the states of Minnesota, Iowa, Missouri, Arkansas, North Dakota, South Dakota and Nebraska, ruled in favor of the employer on the grounds that Reynolds would have been unable to return to work in any event at the end of the twelve weeks of leave.
This case goes one step further than the Sarno case in that the court ruled that the employer did not violate the law by failing to provide Sarno with FMLA leave and then terminating him since Reynolds would have been unable to return to work in any event. Once again, however, this begs the question of what would happen if Reynolds would have been fully capable of returning as he had initially indicated? In addition, even under the facts of this particular case, what if Reynolds had paid time off at his disposal that he would have been entitled to use concurrently had he been put on FMLA? At least as to the former issue, there is very little doubt that the employer would have a problem since Sarno was arguably entitled to FMLA leave and corresponding job protection. The answer to the latter issue is less clear.
Employers who hedge their bets that an employee taking leave due to a medical condition will not be able to return within 12 weeks run a serious risk of liability if they fail to desingate the leave as FMLA and subsequently terminate such an employee. As noted above, the better practice is to provide employees with their FMLA leave notice and avoid the potential exposure, legal fees, legal costs and potentially bad publicity.
Serious Health Condition Further Defined
In Marchisheck v. San Mateo County, the plaintiff was a medical technologist whose son was experiencing behavioral problems ultimately leading to an assault on plaintiff's son by several acquaintances. Plaintiff devised a plan to move her son to the Phillipines to live with Plaintiff's brother. In an effort to secure authorized leave, plaintiff obtained a written statement from a psychiatrist who was associated with counselors who had been treating her son. The statement noted that plaintiff's son needed to move back to the Phillipines and his mother needed to accompany him. Interestingly, that particular psychiatrist had never actually treated plaintiff's son. Despite the letter, plaintiff's leave was denied. Plaintiff took her leave in any event and was terminated.
In ruling for the employer, the Ninth Circuit, which governs California, explained that plaintiff's son did not suffer from a "serious health condition" and plaintiff was not taking time off to "care for" her son. First, the Court noted that regardless of whether the son's injuries from the assault incapacitated him, they only required treatment one time at the emergency room as opposed to the two treatments necessary to fall within the FMLA's parameters. Plaintiff asserted that additional treatments were rendered by the son's mental health counselors. The court ruled, however, that the mere inquiry by one counselor where the son got a black eye does not constitute treatment. The statement provided by the second counselor also did not constitute treatment since he never actually met the son. Second, the court ruled that the son's behavioral problems did not amount to a serious health condition since they did not render him unable to perform regular daily activities. Third, the court noted that there was no competent evidence to suggest that the son's combined physical and psychological conditions served to incapacitate him.
The court went on to state that even had the son suffered from a serious health condition, the plaintiff was still unable to assert a claim since she did not intend to "care for" her son. Plaintiff had no plans to seek medical attention for her son in the Phillipines and did not intend to remain in the Phillipines to participate in any form of treatment or guidance.
Although many of the decisions discussed above originate from jurisdictions outside of Florida, these decisions would have persuasive effect on a case occurring in the State of Florida. Employers, therefore, should treat them with proper deference and govern themselves accordingly.