Since its inception in August of 1993, the Family and Medical Leave Act (FMLA) has provided employers and human resource professionals with a myriad of new requirements governing the management of their workforce. To illustrate the complex nature of the Act, in fiscal year 1997, the U.S. Department of Labor (DOL) received a record 2,670 complaints resulting in employers being required to pay a record $2.86 million to 1,483 of the employees who filed complaints with the Department. In all, the DOL determined that approximately 56 percent of the complaints filed were valid.
Given this extraordinary rate of success, employers and human resource professionals must constantly make efforts to keep up with this rapidly developing area of the law. In that regard, this article will highlight some of the more recent and important developments under the FMLA.
- Employee Termination While On FMLA Leave
Although the FMLA provides that, with few exceptions, an employee returning from FMLA leave must be placed in the same or an equivalent position as held before taking the leave, it does not protect employees taking such leave from being terminated for reasons unrelated to the employee's leave status. In Hubbard v. Blue Cross and Blue Shield Association, Case No. 96-C-7121 (N.D. Ill. 1998), the employer, Blue Cross, terminated its employee, Mary Hubbard, on October 23, 1995, because of poor job performance. However, since Hubbard was absent from work that day and remained on FMLA leave for the next two months, Blue Cross did not inform her of its decision until she returned to work in December, 1997. Hubbard filed suit claiming Blue Cross had violated the FMLA by not returning her to the same or equivalent position upon her return to work.
After reviewing the evidence, the Court found for Blue Cross by holding that Hubbard would have been terminated because of her poor performance regardless of whether she took leave. Although the case was decided in Blue Cross's favor, employers should be extremely careful in terminating employees while they are on FMLA leave. In particular, employers should make certain they have more than ample justification for the termination because the terminated employee is likely to claim that his or her FMLA rights have been violated. Also, unlike Blue Cross, employers should inform the employee of the termination at the time the decision is made, not after the employee has been on leave for an extended period of time.
- Intermittent Leave
Michael Ginley, the Director of the DOL's Office of Enforcement Policy, recently issued an opinion letter in which he stated that an employer may not withhold approval of an employee's request for intermittent leave simply because the employee does not submit a schedule detailing when the leave was needed. In the situation addressed by Director Ginley, the employee requested FMLA leave to care for his seriously ill wife and provided a medical certification which stated that his wife's condition would require intermittent care, but that there was no way to predict when or how long such care would be required.
The employer "provisionally" approved the leave request, but told the employee that a final decision on whether the FMLA would be applied would be made when the employee took the leave. The employer also said that it would not approve the leave in advance unless the worker could provide specific dates when he would need to be away from work. Finally, the employer stated that the worker would be subject to discipline if it decided not to approve the specific absence as FMLA leave.
Recognizing that not all serious health conditions are predictable, Director Ginley stated that the FMLA does not require that an employee submit an exact schedule of leave with a medical certification. In that regard, Ginley wrote, "An employer who withholds approval of FMLA leave and disciplines an employee under the company's attendance policy for any 'unscheduled' leave taken to care for a family member who has a serious health condition may be considered in violation under this law."
- Medical Certification Requirements
In LeGrand v. Village of McCook, Case No. 96-C-5951 (N.D. Ill. 1998), the Court found that an employer violated the FMLA by giving an employee four days to submit a medical certification, required re-certification every 14 days, and then terminated the employee for not complying with its requirements. In particular, the Court found that the employer's demand that the certification be returned within 4 days was in direct conflict with the FMLA's regulations, which provide that "the employee must provide the requested certifications to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employee's request) unless it is not practicable to do so." See 29 C.F.R. § 825.305(b). Moreover, the requirement that a re-certification be provided every 14 days was found to violate the FMLA in that it was contrary to the FMLA's regulations, which provide that, in general, an employer may not request re-certification more often than every 30 days. See 29 C.F.R. § 825.308.
In conclusion, the courts and the DOL are still working their way through the morass of issues created by the FMLA. Accordingly, it is highly recommended that any situation which may even potentially expose an employer to FMLA liability be thoroughly investigated with appropriate input from qualified human resources and/or legal experts.