Unfortunately, we all know the devil is in the details. Employers are stumbling over everything from the definition of a serious health condition to events triggering leave. David Deromedi, a partner at Dickinson, Wright, Moon, Van Dusen & Freeman in Detroit, offers a review—and an update.
What are the FMLA issues at the forefront now?
The first issue that comes up is how much notice employees have to provide to the employer to trigger their rights for leave under the law, and how an employer specifically needs to respond to an employee's notice that he or she might be out or might have a serious health condition that would qualify the person for leave under the act. What we're seeing so far in the law is that the courts and the Department of Labor (DOL) seem to be saying that employers have to be extra careful in determining whether an employee qualifies for leave.
What do you mean by "extra careful"?
Employers have to kind of bend over backward to determine whether an employee is eligible for leave based on the employee's specific situation. I think [the law is] saying that if an employee has a particular health condition and you know that, you have to do everything you can to make further inquiries as to the reason why the employee needs the time off, how long he or she is going to be off, if he or she has a doctor's note to substantiate the time off, and then make an independent determination as to whether that leave qualifies for FMLA leave. Then make sure you walk the employee through the idea that the leave qualifies for FMLA leave and may be treated as such.
So the major thrust is determining if an employee qualifies for leave?
The act itself and the regulations that have been issued by the U.S. Department of Labor have focused on the employer doing everything within its power to make an ultimate determination as to whether the employee qualifies for leave. I think for some employers it's in the forefront of their minds because this is such a new piece of legislation. For others, sometimes they tend to overlook it. It may be worthwhile just asking a few extra questions to determine employee status or health condition whenever an employee will be out for a while to see if he or she may qualify for a leave.
So how careful does an employer have to be about employees' triggering FMLA leave?
[Employers don't need to worry about] an employee who just says, "I'm going to be missing this day or that day," when it's just a one-time situation that doesn't necessarily trigger an employer's need to gather further information about the employee's condition. But we're seeing that once an employee says, "I've got some sort of condition that will keep me out of work for more than just a day or two," then a lot of courts are saying that's adequate notice for an employer to make a further investigation.
Anything else employers should note?
The other thing for employers [to be aware of], especially if they have personnel handbooks or policy manuals: It looks like the courts are going to say that you should have contained within those handbooks and manuals a fairly detailed statement of what employees' FMLA leave rights are and what they can do to get leave under the FMLA. You absolutely shouldn't have anything in there—and I know this is a hard standard to define—that will confuse the employee or make the employee think there are some rights they might have beyond what they're allowed under the FMLA.
Is there legal precedent for such a scenario?
I'm thinking of a recent court decision from a federal court in Pennsylvania. Basically the court ruled that even though the employer had a provision that identified what type of leave it provided under the FMLA, and the employees had that, the court also found the provision a little misleading. It held the employer to a standard that it has to make sure it clearly identifies what the leave is all about to its employees.
Can you go over the basics of the case?
Under the act, if you take time off you're supposed to, upon your return, be provided with the same job you had before or a job of equivalent duty and pay and conditions and things like that. So the idea behind the act was to provide employees with some significant job protections so they'd be able to take this time off without any fear of repercussion. [In the case mentioned above,] Fry v. First Fidelity Bank Corp., the employee had taken some FMLA time off. She had taken 12 weeks and then an additional four weeks because it appeared from the employer's written policy that [employees] could take up to 16 weeks off, with all that time being protected under the FMLA's provisions. Well the FMLA only requires employers to provide 12 weeks of unpaid leave within any 12-month period. So when this employee came back, the employer put her in a completely different position, not an equivalent position. The employee decided to quit because it wasn't the same thing as she'd been doing before. She wound up bringing a lawsuit [that the employer] didn't really honor her FMLA rights because it didn't provide her with proper reinstatement.
What did the court rule?
The court decided that yes, an employer under the statute has an obligation to reinstate an employee after leave if it's within that 12-week period. In this instance, it's possible the employer may not have had to reinstate the employee if she took leave beyond that 12-week period. But unfortunately, the employer's leave policy wasn't clear enough. Therefore the employee was confused about whether she'd get reinstatement rights if she took the longer 16-week leave. The employer didn't give the employee all the information she would've needed to make an effective choice on her use of the leave. Therefore, because she was misled, she has a possible claim of violation of her FMLA rights. So ultimately what the case means is the courts at this point in time are probably going to do all they can to protect an employee's effective use of rights under the act. It's an interesting decision in the way [the court] arrived at that conclusion, but it's basically one that I think a lot of other courts will adopt: Do the employees have effective use of their leave rights? If they don't, the employer might be in trouble.
What else should employers be aware of?
The one thing I think employers should keep in mind is the act provides for protection for employees who have what's known as a "serious health condition." The DOL has tried to define serious health condition and has come up with an extremely broad definition compared to what most people would normally believe would qualify for a serious health condition. So employers shouldn't just come up with assumptions about what constitutes a serious health condition. Spend some time in getting doctor's certifications specifying what the condition is that the employee has. Then decide whether that might qualify for FMLA leave.
Are courts generally swaying pro-employee?
I think they are, but of course I'm coming from the perspective of a lawyer who does work exclusively for employers. What I mean by pro-employee is they're making sure the act has an expansive interpretation on whom it covers and what types of conditions it covers. I think at the individual federal district court level, that's where everything's headed right now. There's a lot of room for the courts to work within the statute because this covers a lot of types of situations. Another thing that certainly employers should be aware of—and it goes more to what their managers should be aware of—is that there have been some instances in which supervisors have been found to be individually liable for violating an employee's FMLA rights. There was one case in which a jury verdict was approximately $58,000. Other courts in other locations have determined that basically individual supervisors may be on the hook under the FMLA as well.
The FMLA is near its fourth anniversary. What are employers still doing wrong?
I think employers have done a good job of at least familiarizing themselves with the law and [communicating] their FMLA statements in their handbooks and policy manuals, and putting up the posters. [The area in which] I see them going astray is not so much in terms of applying the FMLA itself. Especially for larger employers, the [problem is] not having [supervisors] sufficiently apprised in the FMLA and what they should be looking for in order to avoid a problem down the road. Sometimes supervisors, if they've got an employee who might be out or missing work intermittently, instead of considering it a potential FMLA case, just apply the company's normal attendance policies. That can get them into trouble. I think that's [a situation in which] some people are falling down.
Are there any FMLA amendments down the road in 1997?
I know that's one of the many themes President Clinton was talking about during his re-election campaign—ways to fine-tune or expand the FMLA. As far as I know, nothing specific has been sent out of committee for a vote or anything like that. There's an agenda to expand it to allow [parents 24 hours of unpaid leave in a 12-month period] to attend things like their children's school activities and community functions. [The bill also proposes expanding the FMLA to employers of 25 or more people.] There's talk, too, of trying to provide FMLA leave on a paid basis as well. But that hasn't stepped up to the point at which a bill's actually been drafted or reported on as far as I know. It's just a proposed amendment. I'm not sure if in this Congress the climate is good for [such an amendment] to be passed.
Is there anything else on FMLA that employers should be aware of?
I like to caution employers that there's overlap between the FMLA, disabilities discrimination and workers' comp coverage under the various state laws. So whenever an issue arises in which the employee has a serious health condition or potentially disabling condition, that beyond the FMLA issue, there are additional issues. It makes sense to sit down and figure out, either with a lawyer or your own in-house staff, what the employee's individual situation is, what impact these various laws might have on the situation and what you want to do with the employee in terms of managing them for the future.
Final word: the good news and bad news for employers?
One thing I think it's helpful for employers to know is they can certainly designate leave as FMLA leave for an employee even if the employee hasn't requested it by name. If the employee says, "No, I don't think that should be the case," the only way it would not be the case would be if the employee [decided] to show up for work. The employer still has the ability to do that. The other thing—and this won't be a comfort to employers—but certainly on a state-by-state basis, there can be talk about expanding family leave rights well beyond what's already provided by the federal government. That's something employers might want to have in the back of their minds—that this may expand at some time in the future depending on where they do business.
Workforce, April 1997, Vol. 76, No. 4, pp. 101-104.