FMLA Exceeding Intentions Of Congress

The Family and Medical Leave Act (FMLA), signed into law by President Clinton in 1993, was designed to balance the demands of the workplace with the personal and economic needs of families and to promote the national interest by preserving the stability of families.

Most employers support the FMLA, as well as the Americans With Disabilities Act (ADA), as fair means of handling situations facing employees resulting from birth, adoption or a health-related crisis, or from genuine physical or mental disabilities, respectively.

However, in the 11 years since the FMLA was enacted, evolving results from U.S. Department of Labor (DOL) regulations, court decisions, fluid medical guidelines and a changing workplace have created impediments to an employer's ability to operate its business reasonably-in ways that Congress did not intend.

Overall, FMLA compliance is good. Employers do their best to accommodate employees' rights under the regulations, co-workers are supportive and employees play by the rules. But in a growing number of cases, employers may find themselves with permanent “part-time” workers, unmanageable scheduling challenges and ongoing burdens to co-workers and budgets.

Generally, Title I of the FMLA, which covers private-sector employees and most public employees, entitles employees to 12 weeks of unpaid leave during any 12-month period for an employee's serious health condition requiring in-patient care or ongoing treatment; care of one's newborn child; placement of a child with the employee for adoption or foster care; and/or care of an immediate family member requiring in-patient care or ongoing treatment. (Some states provide up to 16 weeks as the federal law is a floor that does not pre-empt more generous state laws.) Leave may be taken in consecutive weeks, on an intermittent basis for an employee's serious health condition (eg, less than a full week) or on a reduced work schedule basis (eg, 5 hours a day instead of 8).

With certain restrictions, an employee generally is eligible for FMLA leave if he or she has worked for an employer for 12 months and if the employer has 50 or more employees at the work site or within a 75-mile radius.

Comparing FMLA and ADA

While the FMLA and the ADA both lay out guidelines for leave eligibility, many similarities end there. While leave may be granted as a “reasonable accommodation” under the ADA, employers are not required to accept a health problem or accommodation request at face value, and they may solicit an assessment of an employee's condition from a physician to determine how best to proceed.

Under the FMLA, however, once an employee receives FMLA certification from a health care provider, doors begin to close for the employer. From that point, only a health care provider representing the employer-not the employer itself-may contact the certifying provider. That representative may ask for clarification of the information that was provided, but may not request additional information beyond that which is legally required. And while the employer may request a second medical opinion, this is often impossible as a practical matter because of the time lines involved and possible need for a third “neutral” physician opinion.

In January 1995, when the final regulations implementing the FMLA were published by the DOL, the nation was beginning a period characterized by a rapidly growing work force and an expanding economy. But today's tighter budgets, foreign competition and leaner staffs mean that absenteeism can affect corporate productivity more dramatically, and reduce already slim profit margins.

This is a matter of some concern because certification of a serious health condition under the FMLA is a virtual license for leave. A person with a chronic, serious health condition as specified under the act-even a common condition such as migraines, asthma or even hypertension-can take FMLA leave with near impunity, on a nearly day-by-day basis, with little or no notice to the employer. This can make it almost impossible for an employer to schedule and deploy its work force, particularly if the staff at the work site is small, or the employee provides a highly specialized service.

The upshot of this is that a properly FMLA-certified employee with a documented, chronic condition could conceivably “self-diagnose” or declare the need for leave himself or herself, and use the FMLA's intermittent leave provision to change his or her schedule. With 12 weeks of unpaid leave at his or her disposal, an employee could take intermittent leave consisting of a day off a week for an entire year, and still have time left over. And because FMLA leave is accrued on a 12-month basis, a fresh supply of leave would again be available at the end of that period. In effect, until leave is exhausted, an employee may attempt to turn a full-time job into part-time employment. The adverse financial and managerial consequences for the employer-and the employee's co-workers who must fill in-are obvious.

In similar circumstances, employers under the ADA could invoke remedies provided by the law. Under the ADA, an employer, if asked, must provide “a reasonable accommodation” to a person with a disability, including leave, but not if the accommodation would place an “undue hardship” on the employer.

ADA Distinctions

The ADA also provides an employer with lawful options if an employee is “no longer able to perform the essential functions of the job,” even with the reasonable accommodation described above, and the courts have often found attendance to be an essential function of a job under the ADA. E.G., Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847 (8th Cir. 2002).

The more elusive matters that may nevertheless be serious health conditions (as intended in the statute), such as migraine headaches and stress-related claims, are perhaps the most prone to self-diagnosis and abuse. A health condition such as chronic fatigue syndrome, which, for the purposes of the FMLA regulations, may be treated as eligible for FMLA leave, may well provide many opportunities for justified leave. But it unfortunately also provides an opening for an opportunistic worker to take unwarranted and unscheduled time off, with limited employer options.

Employers also have to implement the often hyper-technical DOL notice provisions. For example, in a case in Illinois, an employer had changed its policy for counting the 12-month leave period under the act from calendar year to rolling year that begins with FMLA use and notified employees by giving each employee a copy of the new policy and posting it for several months. Dodaro v. Glendale Heights, 2003 WL 1720030 (N.D. Ill. March 31, 2003). The court held that under the DOL regulations, this was insufficient because the original policy had been stated in the employee handbook. The revision, therefore, would have to be physically in the handbook as well.

Changing World of Medicine

There has also been a significant amount of mission creep as the threshold definitions for certain medical conditions have been adjusted downward. The guidelines for hypertension, for example, have recently been redefined. The new guidelines classify blood pressure readings of 120/80 to 139/89 as pre-hypertensive. Until last year, any reading up to and including 129/84 was considered “normal” blood pressure.

The number of potentially eligible FMLA beneficiaries has also grown. New medical methods that treat diseases preemptively and non-invasively ' with drugs and medical therapy rather than surgical remedies ' have increased dramatically in recent years. As a result, the range of medical conditions (truly serious and otherwise), and the corresponding numbers of people under the continuous care of physicians, has skyrocketed. This makes more people potentially eligible for FMLA certification, should they care to seek it.

While the FMLA poses many management challenges and regulatory obstacles for companies, managers must, in the end, manage their businesses for a profitable outcome, and cannot avoid dealing with difficult FMLA issues.

Companies that are tempted to discipline employees they believe are abusing the FMLA leave process must realize, however, that discipline of an employee using FMLA is likely to be challenged. In fact, companies that do not thoroughly investigate and understand a particular situation may suddenly find that they themselves are in violation of the regulations in attempting disciplinary action.

For example, even extending a warning period for time spent on FMLA leave has been held potentially violative of the FMLA. In a controversial decision, the court in Schmauch v. Honda of America Mfg., 295 F. Supp. 2d 823 (S.D. Ohio 2003), denied summary judgment on such facts. This decision is likely to be challenged in other cases.

Companies should be aware that much, if not most, of the burden for FMLA awareness rests on the shoulders of the employer, starting with the posting of an approved notice describing employees' FMLA rights.

Notices Are Crucial

The law vaguely prescribes that employees are required to give employers verbal notice when and why leave is needed. But court decisions have sometimes required employers to initiate an inquiry as to whether, for the particular instance at hand, it is FMLA leave that is being sought, another form of leave or a situation for which discipline would ordinarily be imposed. The recent decision in Byrne v. Avon Products Inc., 328 F.3d 379 (7th Cir. 2003), is both instructive and raises serious concerns when the employee makes no FMLA request. In Byrne, the 7th U.S. Circuit Court of Appeals held that on-the-job sleeping by an employee could in itself provide notice to the employer that FMLA leave was needed or that the employee was incapable of requesting it. Because the plaintiff had been a model employee before his on-the-job sleeping began, the court held that the employer should have designated subsequent leave by the employee as FMLA leave instead of terminating him for failing to come to work, even though the employee never requested FMLA leave.

It is the employer that must designate the time off in writing as FMLA leave and provide notice to the employee that FMLA leave was taken. An employer that fails to provide notice and tries to discharge an employee for exceeding the 12-week FMLA limit, for example, could be found in violation for having prejudiced the employee by not having informed him or her that FMLA leave had been exhausted. Courts may very well find for the employee if a company fails to keep itself and its employee adequately alerted to the changes and developments in an employee's FMLA status and leave situation.

Furthermore, if an employer fails to keep accurate records of FMLA hours, an employee could be considered eligible for continued FMLA leave if previous absenteeism was not recorded specifically as FMLA leave.

Larger, geographically dispersed companies should also be aware of a possible communications disconnect between the human resources department in one location and line management in another. One entity may be well informed of an employee's FMLA status and history, while the other may not. Additionally, doctors often are very slow in submitting FMLA certifications to an employer's human resources department, denying the employer necessary information on which to make its determination under the statute.

This means that a manager who knows that an employee has been on leave for weeks but lacks an FMLA certification would have no idea whether the case requires disciplinary action. For that reason, managers often are loath to impose discipline in any leave situation, even when it is justified, for fear of triggering a potential FMLA violation.

One way to avoid this situation is for managers to enlist the assistance of the on-leave employee to speed receipt of the doctor's certification.

Where Are We Headed?

The intent of the FMLA was to help preserve families by assisting workers with truly serious health conditions such as heart attacks, cancer, strokes, spinal injuries, serious respiratory illness, pneumonia and other diseases and injuries, as well as to give them time to recover, readjust and bond after a birth or adoption. In its application, however, a very different sort of law has emerged in practice-one that often provides employees with a way to extend company-provided leave or convert full-time jobs into part-time jobs on a schedule determined by the employee through self-diagnosis and intermittent leave.

With 10-plus years of FMLA experience, Congress would do well to revisit the issue and to ensure that the original intent of the law is being carried out. The FMLA, as it was envisioned, was fair to workers, families and employers. The FMLA as it has evolved-especially with regard to intermittent leave-often shortchanges not only co-workers and employers, but may adversely affect the nation's economic productivity and ability to compete with foreign competitors.

The Family and Medical Leave Act (FMLA), signed into law by President Clinton in 1993, was designed to balance the demands of the workplace with the personal and economic needs of families and to promote the national interest by preserving the stability of families.

Most employers support the FMLA, as well as the Americans With Disabilities Act (ADA), as fair means of handling situations facing employees resulting from birth, adoption or a health-related crisis, or from genuine physical or mental disabilities, respectively.

However, in the 11 years since the FMLA was enacted, evolving results from U.S. Department of Labor (DOL) regulations, court decisions, fluid medical guidelines and a changing workplace have created impediments to an employer's ability to operate its business reasonably-in ways that Congress did not intend.

Overall, FMLA compliance is good. Employers do their best to accommodate employees' rights under the regulations, co-workers are supportive and employees play by the rules. But in a growing number of cases, employers may find themselves with permanent “part-time” workers, unmanageable scheduling challenges and ongoing burdens to co-workers and budgets.

Generally, Title I of the FMLA, which covers private-sector employees and most public employees, entitles employees to 12 weeks of unpaid leave during any 12-month period for an employee's serious health condition requiring in-patient care or ongoing treatment; care of one's newborn child; placement of a child with the employee for adoption or foster care; and/or care of an immediate family member requiring in-patient care or ongoing treatment. (Some states provide up to 16 weeks as the federal law is a floor that does not pre-empt more generous state laws.) Leave may be taken in consecutive weeks, on an intermittent basis for an employee's serious health condition (eg, less than a full week) or on a reduced work schedule basis (eg, 5 hours a day instead of 8).

With certain restrictions, an employee generally is eligible for FMLA leave if he or she has worked for an employer for 12 months and if the employer has 50 or more employees at the work site or within a 75-mile radius.

Comparing FMLA and ADA

While the FMLA and the ADA both lay out guidelines for leave eligibility, many similarities end there. While leave may be granted as a “reasonable accommodation” under the ADA, employers are not required to accept a health problem or accommodation request at face value, and they may solicit an assessment of an employee's condition from a physician to determine how best to proceed.

Under the FMLA, however, once an employee receives FMLA certification from a health care provider, doors begin to close for the employer. From that point, only a health care provider representing the employer-not the employer itself-may contact the certifying provider. That representative may ask for clarification of the information that was provided, but may not request additional information beyond that which is legally required. And while the employer may request a second medical opinion, this is often impossible as a practical matter because of the time lines involved and possible need for a third “neutral” physician opinion.

In January 1995, when the final regulations implementing the FMLA were published by the DOL, the nation was beginning a period characterized by a rapidly growing work force and an expanding economy. But today's tighter budgets, foreign competition and leaner staffs mean that absenteeism can affect corporate productivity more dramatically, and reduce already slim profit margins.

This is a matter of some concern because certification of a serious health condition under the FMLA is a virtual license for leave. A person with a chronic, serious health condition as specified under the act-even a common condition such as migraines, asthma or even hypertension-can take FMLA leave with near impunity, on a nearly day-by-day basis, with little or no notice to the employer. This can make it almost impossible for an employer to schedule and deploy its work force, particularly if the staff at the work site is small, or the employee provides a highly specialized service.

The upshot of this is that a properly FMLA-certified employee with a documented, chronic condition could conceivably “self-diagnose” or declare the need for leave himself or herself, and use the FMLA's intermittent leave provision to change his or her schedule. With 12 weeks of unpaid leave at his or her disposal, an employee could take intermittent leave consisting of a day off a week for an entire year, and still have time left over. And because FMLA leave is accrued on a 12-month basis, a fresh supply of leave would again be available at the end of that period. In effect, until leave is exhausted, an employee may attempt to turn a full-time job into part-time employment. The adverse financial and managerial consequences for the employer-and the employee's co-workers who must fill in-are obvious.

In similar circumstances, employers under the ADA could invoke remedies provided by the law. Under the ADA, an employer, if asked, must provide “a reasonable accommodation” to a person with a disability, including leave, but not if the accommodation would place an “undue hardship” on the employer.

ADA Distinctions

The ADA also provides an employer with lawful options if an employee is “no longer able to perform the essential functions of the job,” even with the reasonable accommodation described above, and the courts have often found attendance to be an essential function of a job under the ADA. E.G., Spangler v. Fed. Home Loan Bank of Des Moines , 278 F.3d 847 (8th Cir. 2002).

The more elusive matters that may nevertheless be serious health conditions (as intended in the statute), such as migraine headaches and stress-related claims, are perhaps the most prone to self-diagnosis and abuse. A health condition such as chronic fatigue syndrome, which, for the purposes of the FMLA regulations, may be treated as eligible for FMLA leave, may well provide many opportunities for justified leave. But it unfortunately also provides an opening for an opportunistic worker to take unwarranted and unscheduled time off, with limited employer options.

Employers also have to implement the often hyper-technical DOL notice provisions. For example, in a case in Illinois, an employer had changed its policy for counting the 12-month leave period under the act from calendar year to rolling year that begins with FMLA use and notified employees by giving each employee a copy of the new policy and posting it for several months. Dodaro v. Glendale Heights, 2003 WL 1720030 (N.D. Ill. March 31, 2003). The court held that under the DOL regulations, this was insufficient because the original policy had been stated in the employee handbook. The revision, therefore, would have to be physically in the handbook as well.

Changing World of Medicine

There has also been a significant amount of mission creep as the threshold definitions for certain medical conditions have been adjusted downward. The guidelines for hypertension, for example, have recently been redefined. The new guidelines classify blood pressure readings of 120/80 to 139/89 as pre-hypertensive. Until last year, any reading up to and including 129/84 was considered “normal” blood pressure.

The number of potentially eligible FMLA beneficiaries has also grown. New medical methods that treat diseases preemptively and non-invasively ' with drugs and medical therapy rather than surgical remedies ' have increased dramatically in recent years. As a result, the range of medical conditions (truly serious and otherwise), and the corresponding numbers of people under the continuous care of physicians, has skyrocketed. This makes more people potentially eligible for FMLA certification, should they care to seek it.

While the FMLA poses many management challenges and regulatory obstacles for companies, managers must, in the end, manage their businesses for a profitable outcome, and cannot avoid dealing with difficult FMLA issues.

Companies that are tempted to discipline employees they believe are abusing the FMLA leave process must realize, however, that discipline of an employee using FMLA is likely to be challenged. In fact, companies that do not thoroughly investigate and understand a particular situation may suddenly find that they themselves are in violation of the regulations in attempting disciplinary action.

For example, even extending a warning period for time spent on FMLA leave has been held potentially violative of the FMLA. In a controversial decision, the court in Schmauch v. Honda of America Mfg ., 295 F. Supp. 2d 823 (S.D. Ohio 2003), denied summary judgment on such facts. This decision is likely to be challenged in other cases.

Companies should be aware that much, if not most, of the burden for FMLA awareness rests on the shoulders of the employer, starting with the posting of an approved notice describing employees' FMLA rights.

Notices Are Crucial

The law vaguely prescribes that employees are required to give employers verbal notice when and why leave is needed. But court decisions have sometimes required employers to initiate an inquiry as to whether, for the particular instance at hand, it is FMLA leave that is being sought, another form of leave or a situation for which discipline would ordinarily be imposed. The recent decision in Byrne v. Avon Products Inc ., 328 F.3d 379 (7th Cir. 2003), is both instructive and raises serious concerns when the employee makes no FMLA request. In Byrne, the 7th U.S. Circuit Court of Appeals held that on-the-job sleeping by an employee could in itself provide notice to the employer that FMLA leave was needed or that the employee was incapable of requesting it. Because the plaintiff had been a model employee before his on-the-job sleeping began, the court held that the employer should have designated subsequent leave by the employee as FMLA leave instead of terminating him for failing to come to work, even though the employee never requested FMLA leave.

It is the employer that must designate the time off in writing as FMLA leave and provide notice to the employee that FMLA leave was taken. An employer that fails to provide notice and tries to discharge an employee for exceeding the 12-week FMLA limit, for example, could be found in violation for having prejudiced the employee by not having informed him or her that FMLA leave had been exhausted. Courts may very well find for the employee if a company fails to keep itself and its employee adequately alerted to the changes and developments in an employee's FMLA status and leave situation.

Furthermore, if an employer fails to keep accurate records of FMLA hours, an employee could be considered eligible for continued FMLA leave if previous absenteeism was not recorded specifically as FMLA leave.

Larger, geographically dispersed companies should also be aware of a possible communications disconnect between the human resources department in one location and line management in another. One entity may be well informed of an employee's FMLA status and history, while the other may not. Additionally, doctors often are very slow in submitting FMLA certifications to an employer's human resources department, denying the employer necessary information on which to make its determination under the statute.

This means that a manager who knows that an employee has been on leave for weeks but lacks an FMLA certification would have no idea whether the case requires disciplinary action. For that reason, managers often are loath to impose discipline in any leave situation, even when it is justified, for fear of triggering a potential FMLA violation.

One way to avoid this situation is for managers to enlist the assistance of the on-leave employee to speed receipt of the doctor's certification.

Where Are We Headed?

The intent of the FMLA was to help preserve families by assisting workers with truly serious health conditions such as heart attacks, cancer, strokes, spinal injuries, serious respiratory illness, pneumonia and other diseases and injuries, as well as to give them time to recover, readjust and bond after a birth or adoption. In its application, however, a very different sort of law has emerged in practice-one that often provides employees with a way to extend company-provided leave or convert full-time jobs into part-time jobs on a schedule determined by the employee through self-diagnosis and intermittent leave.

With 10-plus years of FMLA experience, Congress would do well to revisit the issue and to ensure that the original intent of the law is being carried out. The FMLA, as it was envisioned, was fair to workers, families and employers. The FMLA as it has evolved-especially with regard to intermittent leave-often shortchanges not only co-workers and employers, but may adversely affect the nation's economic productivity and ability to compete with foreign competitors.