Here are some Family and Medical Leave Act (FMLA) highlights from recent months.

DOL Regulation Requiring Individualized Notice Upheld.  Although the FMLA does not have any specific requirements regarding notice, U.S. Department of Labor (DOL) regulations require prompt notification when paid leave time will be counted against FMLA leave, and also require that such notification be provided no less often than the first time in each six-month period that the employee gives notice of the need for leave.  The U.S. Court of Appeals for the Fifth Circuit held in Downey v. Strain that the DOL’s individualized notice regulations were valid.  The employee in that case had been prejudiced by the employer’s noncompliance – i.e., if the employee had received individualized notice, she would have been able to postpone surgery, thus allowing her to fully exercise her right to take 12 weeks of protected FMLA leave each year, and protecting her right to return to her previous job or its equivalent. 

FMLA Protection For Alcoholism Starts When Treatment Begins. In Darst v. Interstate Brands Corp., the employee claimed his FMLA rights were violated when he was terminated for absenteeism after returning from a leave for alcoholism treatment.  Prior to arranging for treatment or being admitted, however, he had missed three days of work, which the employer treated as unexcused.  He nonetheless submitted a medical certification form stating that he had a serious health condition that covered the unexcused absences.  The U.S. Court of Appeals for the Seventh Circuit noted that "treatment” is a defined FMLA term that does not include actions such as calling to make an appointment.  Because the employee produced no evidence that he actually received any treatment as defined by the FMLA on the three days in question, he was not entitled to FMLA leave for those days, and his employer was free to terminate him.

Disclosing FMLA Diagnosis Can Create ADA Liability. After receiving an HIV diagnosis, an employee enrolled in a medical study and asked his manager for a work schedule that would accommodate his weekly blood draws.  The manager told the employee that he would need a specific diagnosis so the manager could evaluate the request, and the employee reluctantly informed the manager of his HIV diagnosis.  The manager disclosed the employee’s HIV diagnosis to the employee’s supervisor, who, in turn, informed two of the employee’s coworkers.  To determine whether an employee qualifies for FMLA leave, an employer may ask questions related to the need for leave – but such information is entitled to confidentiality under the ADA, which strictly limits the inquiries an employer may make regarding medical conditions and the manner in which information can be used.  In EEOC v. Ford Motor Credit Co., a U.S. District Court in Tennessee rejected the employer’s defense that the employee had voluntarily disclosed the information (voluntarily disclosed information is not protected by the ADA), and declined to dismiss the employee’s ADA lawsuit.

Honest Belief About Leave Abuse Precluded FMLA Claim. In Vail v. Raybestos Products Co., the employer undertook surveillance because it suspected that an employee, while on intermittent FMLA leave for migraine headaches, was actually working for her family’s lawn care business.  The surveillance revealed that, shortly after the employee had visited her doctor and received instructions not to return to work for 24 hours, she called off work but then proceeded to mow a lawn. The Seventh Circuit affirmed the dismissal of the employee’s FMLA lawsuit, holding that the employee must show she took leave “for the intended purpose” and that the employer can defeat an FMLA interference claim by showing that she did not.  The court concluded that the employer did not violate the FMLA due to its “honest suspicion” that she was abusing her leave.

Handbook Language Created Additional Rights. Watch what you say in your employee handbook regarding FMLA leave. In Peters v. Gilead Sciences, Inc., the Seventh Circuit held that an employee could proceed with state law breach of contract and promissory estoppel claims based on handbook language that granted employees leave commensurate with that provided by the FMLA – despite the fact that the employer had less than 50 employees within 75 miles of the employee’s worksite and was therefore not subject to the FMLA.  The court held that these representations in the handbook (which were repeated in letters to the employee) could create enforceable state law rights apart from the FMLA.

Staffing Firm And Client-Employer Are “Joint Employers.”  In Grace v. USCAR and Bartech Technical Services, the U.S. Court of Appeals for the Sixth Circuit held that a staffing firm and its client were “joint employers” for purposes of the FMLA, thereby triggering potential FMLA liability for both.  While a Bartech employee assigned to USCAR was on an approved FMLA leave, her position was eliminated and her job was not restored upon her return.  She sued both entities alleging they had interfered with her FMLA rights.  Relying on a DOL regulation, the Sixth Circuit rejected USCAR’s argument that it was not her "employer" – i.e., that it was merely Bartech’s client and Bartech was the “employer.”  The court found that USCAR directed the day-to-day work of the employee and controlled her salary and hours.  Consequently, they were joint employers and equally liable for alleged FMLA violations relating to her non-reinstatement.  Although only the primary employer (the staffing firm) is responsible for giving required notices and providing FMLA leave under the DOL regulations, when an eligible employee takes leave both the primary and secondary employers must honor the decision and not engage in retributory action.  The secondary employer argued here that it had legitimate reasons for eliminating the employee’s position, but the court held that she had produced sufficient motivational evidence to warrant a trial on whether the restructuring would have occurred regardless of her FMLA leave. 

Calculation Of Hours For FMLA.  In Staunch v. Continental Airlines, the Sixth Circuit addressed a recurring question regarding whether an employee (a flight attendant) had the requisite 1,250 hours for FMLA eligibility.  The airline ran a calculation based on its records and found that she fell short; the employee calculated her time based on her own recollection and concluded she had worked well over 1,250 hours.  The DOL regulations direct courts to follow the rules for calculating hours under the Fair Labor Standards Act, and note that if the “employer does not maintain an accurate record of hours worked by an employee. . . , the employer has the burden of showing that the employee has not worked the requisite hours.”  The Sixth Circuit found that the airline did not maintain a record of the actual hours spent performing some of the flight attendant’s duties, and it therefore had the burden of proving that she did not work the requisite 1,250 hours.  However, the court went on to conclude that the airline met this burden by compiling pay registers detailing each flight she worked and adding time required by the applicable collective bargaining agreement for work performed outside of flight time.  It rejected the employee’s attempts to refute these calculations with an undated generalized list she compiled strictly from her own recollection. 

Still Awaiting New DOL Regulations.  On February 11, 2008, the DOL released proposed revisions to its FMLA regulations, which contain a number of significant modifications.  The public comment period closed on April 11, 2008.  The DOL is expected to issue the final version before the end of President Bush's term.  Notable changes proposed by the DOL include:

• Five-Year Break in Service. Prior service with the employer must be counted toward the 12-month eligibility rule unless a break in service of over five years occurred.  Exceptions include breaks in service caused by military duty or certain collectively bargained leaves of absence.

• Coverage of PEOs as “Joint Employers.”  Professional Employer Organizations (PEOs) are not joint employers of their clients’ employees if the PEO assumes administrative functions such as payroll and benefit administration but does not participate in or control employment decisions such as hiring, firing, or direction of work.

• Chronic Serious Health Conditions Requiring Periodic Leave.   Eligible employees with chronic serious health conditions prompting episodes of leave remain protected by the FMLA, but must visit their health care provider at least twice per year.

• Missed Overtime.  Overtime that an employee would have been required to work but did not due to FMLA leave must be counted against available FMLA leave.

• Bonus Goals and FMLA Absences.   Under certain circumstances, bonus awards based on employee achievement of specific goals may be denied to employees who fail to achieve those goals due to FMLA absences.

• Specific Written Notice of FMLA Eligibility and Designation within Five Business Days.  The time period to notify employees of FMLA eligibility and designation is extended from two to five business days.

• Revised FMLA Forms. The DOL’s prior FMLA medical certification form has been expanded to require more specific information about the frequency and duration of absences.  The DOL also separated its prior form concerning notice to employees into two forms entitled “Designation Notice” and “Eligibility Notice.” 

Sannon V. Loverich

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