The federal Family and Medical Leave Act (FMLA) continues to be a popular theory for employees suing their present and former employers. Here are some recent examples of FMLA decisions that present new, interesting, or controversial issues.

“Successor Liability” Made Employee Eligible For FMLA Leave. In what seems to be a rather dramatic extension of the FMLA’s eligibility provisions, the U.S. Court of Appeals for the Sixth Circuit ruled in Cobb v. Contract Transport Inc. that a truck driver who had worked less than a year for Contract Transport could “piggyback” his previous years of service with a former employer even though there had been no sale or merger of assets. Contract Transport successfully bid on a mail delivery contract during the U.S. Postal Service’s cyclical bidding process. In a sense, it stepped into the shoes of the former contractor, Byrd Trucking. It then hired Cobb, a former Byrd Trucking employee, to drive a route he had done for several years. Even though there was no relationship between Byrd Trucking and Contract Transport, the Sixth Circuit found the latter to be a “successor” to the former under traditional labor law principles, which, the court held, made Cobb eligible for FMLA leave notwithstanding the FMLA’s explicit one-year eligibility rule. In straining to “balance the equities” of this situation, the Sixth Circuit panel did not appear to recognize the differing contexts and purposes of “successor liability” issues under federal labor law, or that the FMLA’s unambiguous one-year eligibility requirement should control in this setting. Perhaps this issue will be revisited.

Job Elimination Upheld While Employee Was On FMLA Leave. An employer often feels boxed in when business changes occurring during an employee’s FMLA leave force it to consider eliminating or altering the employee’s position. If it does so, the employer may well face a failure-to-restore or retaliation charge; if it does not, it may compromise its business plan or generate complaints from other employees. In Yashenko v. Harrah’s NC Casino Company, the Fourth Circuit recently upheld an employer’s decision to eliminate the employee’s position, based on a well-documented plan made in advance of the FMLA leave, and rejected the employee’s claim to an absolute entitlement to restoration. Accepting the employer’s business case at face value, and relying on the FMLA’s “anti-bootstrapping” provision, the court concluded that an employee has no greater right to restoration than he or she would have had without the FMLA leave.

Post-Termination Evidence Disentitled Employee To FMLA Leave. In Edgar v. JAC Products, Inc., the Sixth Circuit held that evidence of an employee’s inability to return to work within twelve weeks can be a defense to liability even if the employer is not aware of it at the time of the employee’s termination. Edgar was terminated for failing to timely return the certification justifying her FMLA leave. Edgar disputed whether the deadline had actually been missed. After her termination, her psychiatrists determined she could not be released to work until long after the FMLA-period would have ended. When Edgar sued, alleging that her employer had wrongfully interfered with her rights under the FMLA, the court held that the post-termination psychiatric determination could be used to justify the employer’s action. In such “interference” cases, the court reasoned, “the issue is simply whether the employer provided its employee the entitlements set forth in the FMLA.” The employer’s knowledge or motive is not in question in that setting. In contrast, where the employee pursues an FMLA “retaliation” claim, after-acquired evidence will not provide a defense to liability, though it does limit the relief to which the employee may be entitled.

Ineligible Employee Might Still Be Entitled To FMLA Protection. In Beffert v. Pennsylvania Department of Public Welfare, a U.S. District Court in Pennsylvania held that an employee who was employed for less than seven months could be protected from retaliation under the FMLA where the employee’s requested leave was to occur more than twelve months following the start of her employment. Beffert alleged that she was terminated seven months into her employment, shortly after she announced her pregnancy. The employer argued that her FMLA claim must be dismissed because Beffert had been employed less than a year at the time of the alleged adverse action (i.e., termination), and hence was outside the statute’s definition of a covered employee. Despite the FMLA’s definition of an eligible employee as one who has been employed for at least twelve months, the court ruled that an employee is not barred from proceeding with a retaliation claim if he or she requests leave that is to begin more than twelve months after employment commenced. In a subsequent opinion, however, the court denied Beffert’s FMLA claim on substantive grounds because she failed to give sufficient notice of her need for FMLA-qualifying leave. Beffert had initially inquired about the availability of “light duty” work and when that was denied, she informed her employer that she was pregnant and submitted a doctor’s note that restricted her from lifting more than ten pounds. The court held that this was insufficient notice of her intent to take maternity leave because she never informed her employer when or whether she would take maternity leave, how long it might continue, or whether she intended to return after the baby’s birth.

Merely Saying “I’m Sick And Went To The Doctor” Was Not Enough. The Seventh Circuit illustrated how factually sensitive these kinds of FMLA notice and certification cases can become. In Phillips v. Quebecor World RAI Inc., the Seventh Circuit reacted negatively to an employee’s FMLA claim where she had simply told her employer she was sick, had seen a doctor, and would be off for three days. The employee then left work. It turned out that she did have a serious health condition, but this was not made known to the employer until after it had discharged her for too many attendance occurrences. The appeals court ruled that the employee’s statements were too vague to notify her employer that her absence qualified for FMLA protection, and that an employer is not required to excuse an absence or make further inquiry based on such sketchy information.

Doctor’s Note Was Sufficient Certification For Return After FMLA Leave. In Brumbalough v. Camelot Care Centers Inc., the Sixth Circuit held that a handwritten note from a doctor stating that the employee was released to return to work was sufficient notice to an employer to allow an employee to return to work after an FMLA leave. The employer (who actually denied ever receiving the doctor’s note) claimed that it was insufficient because it did not meet the employer’s requirements, such as specifying whether the employee could perform the essential functions of her job. The court held that, although the FMLA permits an employer to require a fitness-for-duty certification prior to reinstatement, the regulations provide that the certification need only be a simple statement of an employee’s ability to return to work. While the employer may require more information, the regulations provide that the employer cannot delay reinstating the employee simply because the employer is obtaining further information or clarification from the employee’s health care provider.

Helping Adult Daughter During Childbirth Did Not Qualify For FMLA Leave. In Cruz v. Publix Super Markets, Inc., the Eleventh Circuit held that an employee’s request for leave to assist her adult daughter with her pregnancy and labor failed to give sufficient notice to invoke the FMLA. The employee in Cruz submitted a note from her daughter’s doctor stating that her son-inlaw had a broken collarbone, that he was unable to help with the daughter’s labor and coaching, and that the daughter felt she needed her mother’s assistance. Noting that being pregnant, as opposed to being incapacitated because of pregnancy, is not a “serious health condition,” the court held that the employer had no indication that the daughter was experiencing anything other than a normal pregnancy. Consequently, the mother’s FMLA leave request did not identify a qualifying condition. Althoughit turned out that there were complications with the daughter’s pregnancy, the employee failed to inform the employer that her daughter was experiencing complications or was otherwise “incapable of self-care because of a mental or physical disability.” The burden consequently did not shift to the employer to request more information. What really happened, the court concluded, was that the employee merely expressed a desire to assist her daughter during the birth of her grandchild, a “condition” the FMLA does not cover.

Employers May Not Discontinue Plan Contributions During FMLA Leave. In two recently released opinion letters, the U.S. Department of Labor (DOL) opined that employers may not reduce or discontinue contributions to health care plans while an employee is on an FMLA-qualifying leave, even if contributions would not be continued for employees taking non- FMLA leave. The first employer had asked the DOL whether it was required to continue paying into a cafeteria plan when its policy required all employees on unpaid leave of any kind to make their own group health coverage payment during the leave. Relying on the DOL regulation that benefits must be maintained “in the same manner and at the same levels as provided when the leave began … subject to any changes in benefit levels that may have taken place during the period of FMLA leave,” the DOL stated that “employees taking unpaid FMLA leave must have that portion of their cafeteria plan allotment allocated to group health insurance (including dental) premiums paid by the [employer] in the same amount as paid prior to the start of the FMLA leave.” The DOL also stated that the employer could not recover premium payments from the employee for periods of FMLA leave because the employer provides money for coverage when employees are working.

In the opinion letter to the second employer, the DOL stated that the same rule applies for multi-employer health plans: “The FMLA regulations require an employer to continue contributing to a multi-employer health plan on behalf of an employee on FMLA leave, unless the plan contains an explicit FMLA provision for maintaining coverage such as through pooled contributions by all employers party to the plan.” Many collective bargaining agreements that adopt multi-employer health plans do not expressly provide for continuing contributions or coverage during periods when an employee is not working, and many employers have not been making such contributions.

Shannon V. Loverich

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