• New FMLA Court Decisions Provide Guidance
  • February 25, 2004 | Author: Mary M. Krakow
  • Law Firm: Fredrikson & Byron, P.A. - Minneapolis Office
  • Compliance with the federal Family and Medical Leave Act (FMLA) can be daunting. While the FMLA and its regulations set forth multiple requirements, employers continue to confront real-life workplace situations that the statute and regulations do not specifically address. When employees disagree with their employers' decisions on such issues, the disputes often end up in court. Several recent decisions provide guidance on a number of real-life FMLA dilemmas.

    1. Can an employee who has not yet worked the required twelve months when she begins a medical leave be eligible for FMLA leave?

    Yes, said the Fourth Circuit Court of Appeals in Babcock v. BellSouth Advertising and Publishing Corp., 348 F.3d 73 (4th Cir. 2003).

    The plaintiff, Kimberly Babcock, was hired on June 1, 1999. Upon her physician's advice, Babcock requested a six-week medical leave of absence for a serious health condition. Per company policy, Babcock was granted short-term disability (STD) leave beginning on May 19, 2000. Thinking the requested full six-week leave had been granted, Babcock left town and did not return home until June 9. Upon returning, however, Babcock found two letters from BellSouth telling her that

    • her STD leave was approved only through May 27,
    • she should return to work no later than June 9, and
    • if she failed to do so, she could be subject to discipline, including termination.

    Babcock called the company on June 9 and requested more leave, paid or unpaid. The company benefits case manager told Babcock that she was not eligible for FMLA because she had not worked for the company for the required 12 months when her leave began on May 19. See 29 U.S.C. 2611(2)(A)(i). Babcock did not return to work, and BellSouth terminated her on June 14.

    Babcock sued Bellsouth for wrongful termination under the FMLA, arguing that she had been employed with the company more than the required 12 months when she requested leave on June 9. BellSouth argued that Babcock was not an "eligible employee" under the FMLA because she had not been employed by the company for the required 12 months before the start of her leave on May 19. BellSouth argued Babcock's request on June 9 was irrelevant.

    The jury agreed with Babcock and awarded her $91,913 in lost wages and benefits. The Fourth Circuit upheld the jury's verdict on appeal, ruling that Babcock was correct when she said the relevant FMLA leave period began on June 9. Babcock had been on a company-approved STD leave from May 19-27 and had been on an unexcused absence from May 28-June 9, thus passing her one-year anniversary while still employed by the company. The company could have terminated Babcock between May 28 and June 1, but did not. When Babcock requested additional unpaid medical leave on June 9, she had completed the required 12 months of employment and had become an "eligible employee" under the FMLA. After that point, the company could not lawfully deny her FMLA leave or terminate her employment.

    2. Can three consecutive partial days of absence satisfy the FMLA's definition of "serious health condition"?

    No, said the Eleventh Circuit Court of Appeals in Russell v. North Broward Hospital, 346 F.3d 1335 (11th Cir. 2003).

    The FMLA provides leave for a "serious health condition" that makes an eligible employee unable to perform the functions of his or her position. 29 U.S.C. § 2612(a)(1)(D). The FMLA defines a "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves

    • inpatient care in a hospital, hospice, or residential medical care facility; or
    • continuing treatment by a health care provider." Id. at § 2611(11). "Continuing treatment by a health care provider" requires incapacity to work due to a serious health condition "of more than three consecutive calendar days" and

      1. treatment two or more times by a health care provider, or
      2. treatment one time by a health care provider resulting in a regimen of continuing treatment under the health care provider's supervision. 29 C.F.R. § 825.114(a)(2).

    As a result of a fall at work, Plaintiff Russell visited a health care provider multiple times and, beginning May 31, 2000, missed all or part of the next ten days. Russell never missed a consecutive 72 hours, however. Significantly, Russell had previously been disciplined three times for unscheduled absences, including a final written corrective action and a three-day suspension without pay. After missing part or all of her scheduled work days on May 31, and June 1, 2, 5, 6, 7, and 9, she was terminated for excessive absenteeism.

    Russell sued her employer for wrongful termination under the FMLA, arguing that her absences in May and June were covered by the FMLA. The jury ruled against Russell, finding that she had not met the FMLA's definition of a "serious health condition."

    On appeal, Russell asked the Eleventh Circuit to find that partial-day absences count toward the required "more than three consecutive calendar days" of absence. The Eleventh Circuit disagreed, ruling that the definition of "calendar day" is a 24-hour period, and that the regulations require three consecutive full days of incapacity with at least an additional partial day of incapacity before or after that. Consecutive partial days of incapacity do not meet the FMLA's definition of "continuing treatment" to establish a "serious health condition."

    3. Does a child's ADD and ADHD necessarily qualify as an FMLA "serious health condition"?

    No, said the Sixth Circuit Court of Appeals in Perry v. Jaguar of Troy, 2003 WL 23025473 (Dec. 30, 2003), ruling that the employee, Jeffrey Perry, was not entitled to FMLA leave to stay home with his 13-year-old son for the summer.

    Perry, who notified the company at the beginning of the summer that he was taking leave from June 13 until August 27 for "child care" reasons, made no reference to the FMLA and provided no medical certification for the leave. When Perry attempted to return to work at the end of August, the company informed him that it had filled his position and no other position was available. Perry then sued the company under the FMLA, seeking reinstatement and damages.

    Perry argued he needed FMLA leave to care for his son, who because of attention deficit disorder (ADD), attention deficit hyperactivity disorder (ADHD), and other learning disabilities, needed "intense, specialized care" and "extraordinary supervision." The son, certified as "educable mentally impaired," took medication to treat his impulse control problems and visited a doctor every six months to check his physical condition and the effect of the drugs. Perry argued that these conditions qualified as a "chronic or permanent serious health condition" under the FMLA. 29 C.F.R. § 825.114(a)(2)(iii). Perry argued he needed to be home with his son for the summer because his wife could not take off work and the family could not find affordable summer day care that would meet his son's need for full-time attention in a "very controlled environment."

    In ruling against Perry and in favor of the company, the court found that Perry's son's conditions were not "incapacitating." He could attend school and engage in the same daily activities in which most children engage -- biking, swimming, playing video games, watching television, and playing with neighborhood friends. The court explained that the amount of supervision Perry's son needed was no different from what a younger child with no learning disabilities may require. Such supervision would not be covered by the FMLA.

    4. Must an employee identify the "FMLA" by name to be entitled to FMLA leave?

    No, said the Perry court. While the court ultimately dismissed Perry's FMLA claim because the son's condition did not meet the FMLA's definition of "serious health condition," it rejected the company's argument that the FMLA did not apply to Perry's leave because he had not mentioned the FMLA in his initial notice and had not mentioned that he was providing the child care for his disabled son.

    The court found that the company had sufficient information reasonably to conclude that Perry was asking for FMLA leave. Perry presented evidence that the company was aware of his son's health condition; he had discussed it often at work and his son had visited the company. The court specifically noted that the FMLA regulations do not require employees to expressly assert their rights to take FMLA leave. 29 C.F.R. § 825.302(c). An employee gives sufficient notice of the need for FMLA leave by providing enough information for the employer to reasonably conclude that an event covered by the FMLA has occurred.

    5. Does an employee lose FMLA protection by failing to provide medical certification that the company did not specifically request?

    No, said the Perry court, rejecting the company's argument that the FMLA did not apply because Perry did not provide medical certification. The court explained that when an employee first asks for FMLA leave, it is the employer's burden to give specific written notice of the employee's obligations, including the duty to provide medical certification and the consequences for failing to do so. 29 C.F.R. §§ 825.301(c)(2) and 825.305(a). The company argued that it had provided Perry sufficient notice through language included in its FMLA policy in the employee handbook. The court rejected the company's argument, ruling that the handbook policy was not sufficient and the company was required to ask for the certification from Perry when he initially began the leave and each time thereafter that it was required.

    These court decisions answer some of the questions regarding the FMLA statute and regulations. Still, employers must be careful when applying these decisions to their circumstances; any change in the facts could lead to a different result. Also, the decisions technically are limited to the states within the applicable circuits, none of which includes Minnesota. We do not know whether Minnesota courts will follow these decisions. We urge employers with FMLA compliance questions to contact their employment counsel.