Category Archives: Family and Medical Leave Act

Can An Employee Sue Under The FMLA If The Employee Experiences No Monetary Loss?

No – the Eighth Circuit Court of Appeals recently upheld summary judgment dismissal of an employee’s claim under the Family and Medical Leave Act (FMLA) because the employee did not suffer any monetary loss.

In Hasenwinkel v. Mosaic, the plaintiff was a nurse who alleged that her former employer violated the FMLA in a number of different ways. No. 14-3786 (8th Cir. Dec. 29, 2015). One of the employee’s allegations was that the employer violated the FMLA by issuing a one-month disciplinary suspension. The employer initially suspended the employee without pay because she failed to report unsafe mold in a group home, in violation of the employer’s policies. However, the employer later issued back pay to the employee for the one-month suspension.

In holding that the employee could not recover for the one-month suspension under the FMLA, the court explained that “a plaintiff proceeding under the FMLA must show actual monetary loss to recover.” Because the plaintiff received back pay for the suspension and did not suffer any monetary losses, the court held that her claim failed as a matter of law.

Takeaway: Employees cannot prevail on claims under the FMLA unless they suffer an actual monetary loss.

Should Employers Offer Up To One Year of Paid Parental Leave?

According to reports, Netflix recently adopted a policy that will allow employees to take unlimited paid parental leave within the first year after a child is born or adopted.  The new policy is part of a broader trend among employers to attract and retain talent by offering generous parental leave benefits.  Netflix’s Chief Talent Officer explained the new policy by stating that “Netflix’s continued success hinges on us competing for and keeping the most talented individuals in their field.”

Other companies, particularly in the tech field, also offer parental leave benefits that exceed the requirements of federal or state law.  For example, Facebook allows new parents to take up to four months off, and Apple allows mothers to take up to 14 weeks off and their partners to take up to 6 weeks off.

The primary benefit of these policies is that they help employers recruit and retain employees, particularly women – which has been difficult for some tech employers to achieve.  After Google increased its parental leave from 12 weeks to 18 weeks, the company reported that mothers were leaving the company at half the rate they did previously.

On the other hand, the downsides include increased costs for the employer and a potential decrease in productivity.  When employees take paid leave, the employer must either hire a temporary replacement or re-allocate the employee’s work responsibilities to others, increasing those other employees’ workloads.  Given these concerns, not all employers may be able or willing to offer parental leave benefits as generous as the new Netflix policy.

Takeaway:  Offering generous parental leave benefits is one method of recruiting and retaining employees, but whether it is right for a particular company depends on a variety of factors.

Is A Prescription For Medication Sufficient To Establish A Serious Health Condition Under the FMLA?

No – the Eighth Circuit Court of Appeals recently held that a single prescription for medication is not sufficient to establish a serious health condition under the Family and Medical Leave Act (FMLA), unless it is “under the supervision of a health care provider.” Johnson v. Wheeling Machine Products et al., No. 13-3786 (8th Cir., Feb. 20, 2015).

In Johnson, the employee left work early and went to the doctor on May 11, 2011, because he was not feeling well. A physician assistant gave the employee a prescription for high blood-pressure medication and told him to follow up with his regular physician, but the physician assistant did not tell the employee when he should schedule the follow-up appointment. The physician assistant also gave the employee a note excusing him from work and stating that he could return to work on May 16, 2011.

When the employee brought the note to work, the employer questioned its authenticity and stated that it was not sufficient under the employer’s policy because it did not state the reasons for the employee’s absences. The employee subsequently provided two more notes, but neither of them provided a more detailed explanation for the absences. The employer then suspended the employee on May 16, 2011, and terminated his employment on May 18, 2011. The employee later sued, alleging that the employer violated his FMLA rights. The district court dismissed the employee’s claims on summary judgment.

In analyzing the case on appeal, the Eighth Circuit explained that in order to demonstrate that the employer interfered with the employee’s entitlement to FMLA leave, the employee must first establish that he was entitled to FMLA leave due to a serious health condition. One way that an employee can establish a serious health condition is by proving a period of incapacity for three or more days plus “[t]reatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of a health care provider.” 29 C.F.R. § 825.115(a)(2). DOL regulations define “regimen of continuing treatment” to include “a course of prescription medication.” 29 C.F.R. § 825.113(c).

The Johnson court held that the employee failed to prove a serious health condition because, although he received prescription medication, it was not under the “supervision of a health care provider.” The court explained that:

We believe the supervision requirement must be given effect. To interpret the regulation as requiring only a single visit to a health care provider, followed by a course of prescription medication, would be to read the “supervision” language out of the provision . . .

If a person’s health condition is indeed “serious,” it follows that the patient’s regimen of continuing treatment would involve either supervision – for example a phone call with the health care provider to communicate updates on the patient’s condition and progress – or a follow-up appointment soon after the first visit (which, if fulfilled, could satisfy the two-treatment definition).

Because the physician assistant simply prescribed medication to the employee and sent him on his way, the court held that the plaintiff did not satisfy the “regimen of continuing treatment” definition of serious health condition.

The court also rejected the argument that the employee established a serious health condition by showing “[t]reatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider . . . .” 29 C.F.R. § 825.115(a)(1). The court held that the employee did not satisfy this definition of serious health condition because the physician assistant “did not indicate a time period within which he should follow up with his regular doctor.” The court explained that “[v]ague assertions about a follow-up appointment without specificity as to its timing are not sufficiently probative to permit a finding in [the employee’s] favor . . . .”

Because the employee did not establish that he had a serious health condition under the FMLA, the Eighth Circuit affirmed the district court’s order dismissing the case on summary judgment.

Takeaway: An employee’s receipt of prescription medication, without “supervision” by a health care provider, is not sufficient to establish a serious health condition under the FMLA.  However, whether the supervision requirement is met will vary depending on the individual circumstances, so employers should continue to exercise caution whenever denying a request for FMLA leave.

What Should Employers Know About Ebola?

The first known case of Ebola was diagnosed in the United States last week.  Although officials estimate that the chances of an outbreak are very low, here’s some information for employers about the disease and its potential legal implications:

What is Ebola?  According to the World Health Organization, Ebola is a virus characterized as a hemorrhagic fever, and it is frequently fatal.  In previous outbreaks, the fatality rate has ranged from 25% to 90%, but the average fatality rate is approximately 50%.

Where Is the Ebola Outbreak?  The current outbreak of Ebola is primarily affecting the Western African countries of Liberia, Guinea, Sierra Leone, and Nigeria.  Liberia has the largest outbreak.  Senegal and the United States have each reported one case.

How Is Ebola Transmitted?  Ebola is typically not transmitted through casual contact or through the air.  Rather, human-to-human transmission of Ebola generally occurs via direct contact with an infected person’s blood (e.g., through broken skin or mucous membranes), secretions, organs, or other bodily fluids.  It can also be transmitted through surfaces and materials contaminated with these fluids.  People with Ebola are generally not contagious until they begin showing symptoms.  Overall, Ebola is less contagious than many other diseases.

What Are the Symptoms of Ebola?  The initial symptoms of Ebola are fever, fatigue, muscle pain, headache, and sore throat.  As the disease progresses, additional symptoms include vomiting, diarrhea, rashes, impaired kidney and liver function, and in some cases, internal and external bleeding.

What Are the FMLA Implications of Ebola?  Ebola likely qualifies as a serious health condition for purposes of the Family and Medical Leave Act.  Employees who are diagnosed with Ebola or who have covered family members diagnosed with Ebola may be eligible for FMLA leave.

What Are the ADA Implications of Ebola?  Given its severity, Ebola likely qualifies as a disability under the Americans with Disabilities Act.  The most likely accommodation that the ADA might require for Ebola is a leave of absence because an employee diagnosed with Ebola will likely be too impaired to perform his or her job functions without posing a direct threat to the safety of his or her self or others.

Can Employers Ask Employees About For Medical Information Relating to Ebola?  The same rules that relate to other illnesses or injuries under the ADA and FMLA will also apply to Ebola.  In general, this means that any medical inquiries must be job-related and consistent with business necessity, and that any medical information that is provided by an employee must be maintained as confidential.  See 42 U.S.C. § 12112(d)(4).

Do Employers Have a Duty To Protect Employees From Ebola?  Employers have a general duty to protect employees from recognized hazards in the workplace.  The Occupational Health and Safety Act require employers to provide a place of employment which is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  29 U.S.C. § 654.  For the vast majority of U.S. employers, protecting employees from Ebola in the workplace will likely not be a concern, but it’s possible that it could affect certain types of employers.

What Steps Can An Employer Take to Help Protect Its Staff:  Right now, most employers likely do not need to take any precautions.  If the number of reported cases grows and an employer deems that its workforce is at risk, however, those employers may want to consider taking some or all of the following steps, depending on their risk profile:

  • Educate employees about how Ebola is spread and best practices to avoid transmission;
  • Encourage employees to self-report any potential symptoms and to request PTO or a leave of absence if symptoms develop;
  • Establish an emergency preparedness plan or emergency response team;
  • Establish a plan for notifying employees and continuing work functions if an outbreak occurs;
  • Establish a plan for transporting sick employees to the hospital and disposing or cleaning infected materials;
  • Establish an isolation room; or
  • If an infected individual is in the workplace, establish a plan for identifying those employees with whom the individual came into contact so that they can be monitored for symptoms.

What precautions are necessary, if any, will vary significantly depending on factors including the nature of the employer’s business, its workforce, and its geographic location.

Takeaway:  At this time, Ebola should not be a major concern for most employers in the U.S.  Employers with the greatest risk likely include health care employers and employers with employees who travel frequently in Western Africa.

Are Your Employees Mentally Ill?

Statistically speaking, at least some of your employees are likely affected by mental health problems. According to the National Alliance on Mental Illness (NAMI), one in four U.S. adults (approximately 61.5 million Americans) experiences a mental illness in a given year, and one in seventeen U.S. adults (approximately 13.6 million Americans) live with a “serious mental illness,” such as schizophrenia, major depression, or bipolar disorder.

NAMI estimates that the rates for the most common mental illnesses in the U.S. are:

  • 42 million adult Americans (18.1% of the population) live with anxiety disorders, such as panic disorder, obsessive-compulsive disorder (OCD), posttraumatic stress disorder (PTSD), or generalized anxiety disorders or phobias.
  • 8 million adult Americans (6.7% of the population) live with major depression.
  • 1 million adult Americans (2.6% of the population) live with bipolar disorder.
  • 4 million adult Americans (1.1% of the population) live with schizophrenia.

See NAMI Mental Illness Facts and Numbers (March 2013).

The high prevalence of mental health problems makes it imperative that employers understand what legal rules may apply to employees with mental health issues. Many mental illnesses may qualify as a disability and potentially require reasonable accommodation under the Americans with Disabilities Act, provided that certain conditions are satisfied. Alternatively, employees with mental illnesses may be entitled to leave under the Family and Medical Leave Act – however, that is not always the case.

Takeaway: Given the statistics, employers should expect that mental health issues will affect at least some portion of their workforce and make sure to understand any legal requirements that may be implicated. For large employers, in particular, Employee Assistance Programs (EAPs) can be an effective way of providing employees with an option to seek help if they need it.

Can An Employee Who Receives All of His or Her FMLA Leave Bring an FMLA Interference Claim?

No – a recent decision from the Third Circuit Court of Appeals once again confirms that an employee who receives all of the FMLA leave to which he or she is entitled does not have a viable claim for FMLA interference.

In Ross v. Gilhuly, a plaintiff asserted both interference and retaliation claims against his former employer under the Family and Medical Leave Act (FMLA). The plaintiff was initially put on a Performance Improvement Plan (PIP) before taking any FMLA leave. After finding out that he had prostate cancer, the employee then took approximately two months of FMLA leave. Following the employee’s return from leave, the employer extended the PIP and later terminated the employee for poor performance.

With respect to the plaintiff’s FMLA interference claim, the court held that an essential element of an interference claim is that a plaintiff must prove that he or she “was denied benefits to which he or she was entitled under the FMLA.” Because the plaintiff received all of the FMLA leave to which he was entitled, the court dismissed the interference claim. The court explained that:

Ross’s argument that Gilhuly interfered with his entitlement to take FMLA leave free from later discrimination confuses interference with retaliation and is thus misdirected. At bottom, “[a]n interference action is not about discrimination[;] it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA.”

The court also dismissed the plaintiff’s retaliation claim. The court noted that the performance problems that resulted in the plaintiff’s termination began before he took FMLA leave. The court also explained that the timing of the termination did prove retaliation, particularly because the PIP was implemented before the FMLA leave began.

Takeaway: The Ross case is a good reminder that FMLA interference claims are not viable unless an employer withholds FMLA leave benefits from an employee without justification or otherwise prevents an employee from using FMLA leave to which he or she is entitled. FMLA retaliation claims, on the other hand, are generally based on allegations that an employer took an adverse action against an employee after he or she used FMLA leave.

Accommodation of Pregnancy Complications Under the ADA and FMLA

Although Minnesota state law now requires employers to provide accommodations for any pregnant employee, it is important to remember that accommodations or leaves of absence may be required under federal law as well.

Unfortunately, pregnant employees may occasionally experience complications with their pregnancy. As a result, these employees may seek accommodations from their employer, including a leave of absence.  In many instances, the employee will be eligible for an FMLA leave. For example, FMLA may be used for absences related to pregnancy-related incapacities, including morning sickness. 29 C.F.R. § 825.120(a)(4). A spouse may also be entitled to FMLA to care for the pregnant employee who is incapacitated. 29 C.F.R. § 825.120(a)(5).

Beyond the FMLA, pregnant employees may also be entitled to reasonable accommodation under the Americans with Disabilities Act (ADA). As noted in a recent case, even temporary impairments related to pregnancy complications may be covered ADA disabilities, if sufficiently severe. Heatherly v. Portillo’s Hot Dogs, Inc., 958 F.Supp.2d 913 (N.D. Ill. 2013).

Takeaway: In addition to considering their obligations under Minnesota’s new pregnancy accommodation rule, employers should also consider whether employees who are experiencing pregnancy-related complications may require accommodations or leaves of absence under the ADA or FMLA.

Eleventh Circuit Holds that Employee’s Depression Does Not Qualify for FMLA Leave

The Eleventh Circuit Court of Appeals recently reversed a jury verdict for an alleged violation of the Family Medical Leave Act (FMLA) based, in part, on the determination that the employee was not entitled to FMLA leave for his depression.

In Hurley v. Kent of Naples, Inc., the plaintiff alleged that he was terminated after requesting 11 weeks of vacation time over the course of two years and explaining to his employer that he needed the time off due to depression.  At trial, the jury found in the plaintiff’s favor, and the court awarded the plaintiff over $1 million in damages and attorneys’ fees.

The Eleventh Circuit vacated the district court’s findings based, in part, on the conclusion that his request for leave did not qualify for protection under the FMLA.  The court explained that “the FMLA does not extend its potent protection to any leave that is medically beneficial leave simply because the employee has a chronic health condition.”  Rather, the FMLA only authorizes leave for “any period of incapacity or treatment for such incapacity due to a chronic serious health condition.”  29 C.F.R. § 825.115(c).  As a result, even though the plaintiff’s depression likely qualified as a chronic health condition and, therefore, as a “serious health condition” under the FMLA, the plaintiff was ineligible for FMLA leave because there was no evidence that he needed the leave because of a “period of incapacity or treatment for such incapacity” due to his depression.

Takeaway:  The Hurley case shows that even if an employee may have a chronic health condition, that does not necessarily mean he or she is entitled to FMLA leave.  Instead, an employee will only be eligible for FMLA leave for a “period of incapacity or treatment for such incapacity due to a chronic serious health condition.”

What is a Serious Health Condition Under the FMLA?

Whether an employee may be entitled to leave under the Family and Medical Leave Act (FMLA) often depends on whether the employee or his or her family member has a “serious health condition.”  Here’s what employers need to know about how the FMLA defines the term “serious health condition.”

A “serious health condition” is defined as an illness, injury, impairment or physical or mental condition that involves either “inpatient care” or “continuing treatment by a health care provider.”  29 C.F.R. § 825.113.

Inpatient Care” is defined as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with the inpatient care.  29 C.F.R. § 825.114.

Continuing treatment by a health care provider” is defined to include any of the following situations:

(1) Incapacity and treatment:  Any period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves either:  (a) treatment by a health care provider two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist; or (b) treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

(2) Pregnancy or prenatal care:  Any period of incapacity due to pregnancy or prenatal care.

(3) Chronic conditions:  Any period of incapacity or treatment for such incapacity due to a chronic serious health condition that:  (a) requires periodic visits at least twice per year for treatment by a health care provider; (b) continues over an extended period of time (including recurring episodes of a single underlying condition); and (c) may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc…).

(4) Permanent or long-term conditions:  A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, a severe stroke, or the terminal stages of a disease).  The employee or family member must be under the continuing supervision of, but need not be receiving active treatment from, a health care provider.

(5) Conditions requiring multiple treatments:  Any period of absence to receive multiple treatments from a health care provider (including any related period of recovery) for:  (a) restorative surgery after an accident or other injury; or (b) a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc…), severe arthritis (physical therapy), or kidney disease (dialysis).

29 C.F.R. § 825.115.

Takeaway:  There are multiple ways that an eligible employee or his or her family member may qualify as having a “serious health condition” under the FMLA.  Employers who are covered by the FMLA need to be familiar with all of the applicable definitions.

Why Certification Is Essential for Intermittent FMLA Leave

Employers who have dealt with intermittent leave under the Family and Medical Leave Act (FMLA) know that it can be unpredictable and difficult to manage.  Getting certification of the need for intermittent FMLA leave is the first step that employers can take to exert a modicum of control over the situation.

An employee’s medical certification defines the parameters of his or her need for intermittent FMLA leave.  The DOL’s certification form for an employee’s serious health condition includes important questions that relate to how much intermittent leave is necessary.  For example, if an employee’s condition results in episodic flare-ups, the certification form asks the doctor to estimate the “frequency of flare-ups and the duration of related incapacity that the patient may have over the next 6 months (e.g., 1 episode every 3 months lasting 1-2 days).”  Alternatively, if the employee’s medical condition requires follow-up appointments or a reduced work schedule, the certification form asks the doctor to estimate the treatment schedule or reduced work schedule that the employee will need.

If an employee returns a medical certification form that does not include an estimate of the intermittent leave that will be required, an employer can advise the employee that the certification is not complete and request that he or she cure the deficiencies.  See 29 C.F.R. § 825.305(c).  In addition, if an employee’s use of intermittent leave varies from the parameters established by the certification, the employer can request recertification.  See 29 C.F.R. § 825.308(c)(2).

The decision by the 6th Circuit Court of Appeals in Smith v. City of Niles is a good example of how a certification can help an employer plan for and control intermittent FMLA leave.  See No. 11-2394 (6th Cir., Nov. 19, 2012).  In that case, the employee was certified to take one day of intermittent leave every three months.  The employer requested recertification after the employee took six days of leave during a six-month period.  The court held that the employer was justified in requesting recertification based on the changed circumstances and that the request for recertification did not violate the FMLA.

Takeaway:  Whenever an employee requests intermittent FMLA leave, an employer’s first response should be to request certification.  The certification will establish parameters on the intermittent leave and enable the employer to request recertification in the result of changed circumstances.

How to Handle FMLA Leave Abuse

At our recent Safeguarding Employers in 2013 seminar, we provided employers advice regarding how to address fraudulent use of leave under the Family and Medical Leave Act (FMLA).  On many occasions employers are reasonably suspicious that an employee is taking purported FMLA leave for other purposes, such as vacation, attending to errands, or simply taking time away from work.  While the FMLA permits employers to take certain action in response, employers should do so carefully.

The FMLA regulations provide that “[a]n employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA’s job restoration or maintenance of health benefits provisions.”  29 CFR 825.216(d).  Accordingly, an employer may discipline or discharge an employee who fraudulently takes FMLA for another purpose.  In support of this principle, courts have developed an “honest belief” rule.

The “honest belief” rule provides that “so long as the employer honestly believed in the proffered reason given for its employment action, the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken, foolish, trivial or baseless.”  Jaszczyszyn v. Advantage Health Physician Network, 2102 WL 5416616 (6th Cir. 2012).  This rule may not, however, protect an employer which takes adverse action against an employee without proper investigation and foundation.

Employers should not rely on mere speculation and stereotyping when concluding that an employee is not really affected by a serious health condition.  Caution is particularly warranted when an employer is considering the leave of an employee with a mental serious health condition.  If appropriate, employers should consider interactive follow up before taking adverse action, such as seeking a complete medical certification, having a health care provider clarify a medical certification, obtaining a recertification of the employee’s condition, or getting a second opinion from another health care provider.

Takeaway:  Employers do not have to tolerate FMLA leave abuse by employees.  However, employers should take steps to obtain objective and particularized facts before acting on suspicions of improper use of leave.  Failure to do so could result in claims of FMLA interference or retaliation.

Happy 20th Anniversary to the FMLA

February 6, 2013 marked twenty years since the Family and Medical Leave Act (“FMLA”) was signed into law.  The United States Department of Labor recently published the results of a survey that collected information and opinions about the FMLA from employers and employees across the country.  According to the DOL, the survey results were positive, and indicate that the FMLA “continues to make a positive impact on the lives of workers without imposing an undue burden upon employers.”

Specifically, the survey results indicate:

  • Nearly 60% of employees meet all criteria for eligibility and coverage under the FMLA.
  • 13% of employees reported taking a leave of absence for a FMLA reason within the last twelve months.
  • 24% of leaves taken under the FMLA are intermittent leaves.
  • 91% of employers reported that complying with the FMLA either has a positive effect or no noticeable effect on employee absenteeism, morale, or turnover.
  • 85% of employers reported that complying with the FMLA is easy, somewhat easy, or has no noticeable effect.

To read more about the results of the survey, click here.