Waivers Of FMLA Claims. Employers routinely require employees to sign a waiver or release of all claims as a condition for receiving severance pay. A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit - relying on a U.S. Department of Labor (DOL) regulation that states "employees cannot waive, nor may employer employers induce employees to waive, their rights under the FMLA" - recently held that such waivers are unenforceable with respect to FMLA claims. In Taylor v. Progress Energy, the court held that without prior DOL or court approval, the FMLA bars both prospective and retrospective waivers of FMLA claims. This ruling of the Fourth Circuit (covering North Carolina, South Carolina, Virginia, and West Virginia) is at odds with a decision last year by the Fifth Circuit (Louisiana, Mississippi, and Texas) that the DOL regulation does not apply to retrospective waivers. Progress Energy, supported by business groups and the DOL itself as amici curiae, has asked the Fourth Circuit to re-examine the case en banc. The DOL has taken the position in its amicus brief that the regulation was intended to prohibit only prospective waivers. Any other result would obviously inhibit employers from offering generous severance packages in exchange for waivers.

Policy To Curb FMLA Abuses Did Not Violate FMLA. In Callison v. City of Philadelphia, the U.S. Court of Appeals for the Third Circuit held that the employer did not interfere with FMLA rights when it suspended an employee for four days without pay for violating the employer's sick leave policy, which required an employee to notify the employer when he or she leaves home while on sick leave. The City of Philadelphia had developed this policy in an effort to reduce employees' abuse of FMLA time off. Because Callison had a significant number of absences, the City placed him on a "sick abuse list" which required him to obtain medical certification for all sick days taken and subjected him to progressive discipline for violations of the policy. The policy also required that when an employee is home on sick leave, the employee must notify the appropriate authority when leaving home during regular working hours and upon return. The court held that the employer's policy did not conflict with or diminish the employee's substantive rights under the FMLA, and thus did not violate the FMLA. Something to consider?

Lack Of Proper Notice Nullifies FMLA Protection. In Woods v. DaimlerChrysler Corp., the U.S. Court of Appeals for the Eight Circuit reaffirmed that employees who fail to give notice to their employers of the possible existence of a serious health condition are not afforded the protections of the FMLA. Woods violated Daimler- Chrysler policy by leaving work without permission on two occasions. After the second occasion, Woods remained off work for two weeks. During his absence, he called his human resources office on two occasions indicating that he would be seeing a physician and that he would mail in a doctor's note excusing him from work for a week. He then mailed in a doctor's note that simply stated he had been advised to remain off work pending further evaluation and treatment. After Daimler- Chrysler advised him to report to work or be subject to disciplinary action, Woods wrote a letter and met with his human resources representative, stating that he had left work because he was so stressed that he felt his health and well-being were at risk. But he offered no substantiation or documentation that his continued absence was due to an FMLA-protected serious health condition. Consequently, Daimler- Chrysler terminated his employment. The Eighth Circuit upheld the termination, finding that if Woods had wanted FMLA leave, he had the responsibility to give notice "as soon as both possible and practical" that a serious health condition caused his absence. Since he had not done so, he was not protected by the FMLA.

Care Of Family Member Requires Close And Continuing Proximity. The FMLA allows eligible employees to take FMLA leave to care for a spouse, child, or parent with a serous health condition. In Tellis v. Alaska Airlines, Inc., the U.S. Court of Appeals for the Ninth Circuit clarified what it means to "care for" a family member with a serous health condition. Tellis told his employer that his wife was having difficulties with her pregnancy and he needed to take some time off. He took three days of vacation, during which his vehicle broke down. He flew out-of-state to pick up another vehicle, which he then drove back home. While he was gone, he regularly called his wife, who gave birth in his absence. When Tellis failed to show up for his next regularly scheduled shift after his vacation, his employer tried unsuccessfully to contact him and then terminated him for unexcused absence. Tellis argued in his subsequent FMLA suit that his trip to pick up the car constituted "care" for his spouse because it provided reassurance to his wife that she would soon have reliable transportation, and that his frequent phone calls to her provided moral support and psychological comfort. The court rejected these arguments, holding that Tellis' absence was not for an FMLA-qualifying reason. The court reasoned that "providing care to a family member under the FMLA requires some actual care" and that the employee must be in "close and continuing proximity" to the ill family member.

Shannon V. Loverich

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