The Injured Worker And The Family And Medical Leave Act Of 1993
By Christopher R. Heil
The Family and Medical Leave Act[i] (AFMLA) became effective on August 5, 1993, for most employers, and is a powerful tool to protect the injured worker if the law applies. Unfortunately its application is limited to certain employers and certain employees. However, if the employee is covered, most practitioners find that proof of a violation is relatively easy in comparison to other employment cases as the facts necessary to establish the violation are generally well documented or not capable of genuine dispute. Summary judgment for the Plaintiff on part or all of the issues in and FMLA case is not unusual as a result, and a jury trial is then held on damages.[ii]
The FMLA entitles eligible employees to take up to 12 weeks of unpaid, job‑protected leave in a 12‑month period for specified family and medical reasons. The employer may elect to use the calendar year, a fixed 12‑month leave or fiscal year, or a 12‑month period prior to or after the commencement of leave as the 12‑month period. The law contains provisions on employer coverage; employee eligibility for the law's benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and, protection for employees who request or take FMLA leave.
The first issue to be resolved in any potential FMLA case is whether the employer is covered. The FMLA applies to all public agencies, including state, local and federal employers, and all local schools without regard to the number of employees,[iii] and private‑sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce.[iv] Once the threshold issue of employer coverage is reached, the second issue is whether the employee is eligible for FMLA benefits. In order to be eligible for FMLA benefits, an employee must:
- work for a covered employer;
- have worked for the employer for a total of 12 months;
- have worked at least 1,250 hours over the previous 12 months; and
- work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.[v]
If the initial coverage questions are resolved favorably to the employee, the employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12‑month period for one or more of the following reasons:
- for the birth and care of the newborn child of the employee or for placement with the employee of a son or daughter for adoption or foster care;
- to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
- to take medical leave when the employee is unable to work because of a serious health condition.[vi]
A "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either: (1) inpatient care in a hospital, hospice or residential medical care facility; or (2) continuing treatment by a "health care provider".[vii] A serious health condition not requiring inpatient care but involving "continuous treatment" includes, inter alia, one or more of the following: (a) a period of incapacity such as an inability to work for more than three consecutive days; (b) any period of incapacity of treatment for such incapacity due to a chronic serious health condition (e.g. asthma). Cosmetic treatments are not "serious health conditions" unless inpatient hospital care is required or complications develop that rise to the level of a serious health condition.[viii] "Health care provider" means includes, as one might expect, the gamut of medical doctors and related professionals, but also psychologists and under certain conditions, chiropractors, midwives and nurse practitioners.[ix]
Subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave. An employee need not expressly assert that he is requesting FMLA leave in order to invoke his right under the FMLA.[x] The employer is responsible for designating if an employee's use of paid leave counts as FMLA leave, based on information from the employee.[xi] The employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.
Employees seeking to use FMLA leave are required to provide 30‑day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable, such as in the case of scheduled surgery.[xii] Notice will not be required in the event of sudden emergencies such as on the job or other personal injury situation. Employers may also require employees to provide from time to time medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member; second or third medical opinions (at the employer's expense) and periodic re-certification; and periodic reports during FMLA leave regarding the employee's status and intent to return to work.[xiii] When intermittent leave is needed to care for the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer's operation.
Upon return from FMLA leave, an employee (with the exception of "key" employees, usually upper management, which is beyond the scope of this article) must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy.[xiv]
Employees who believe their rights have been violated under the FMLA have the choice of either (1) filing a complaint with the Secretary of Labor, or (2) filing a private civil lawsuit.[xv] In either case, the action must be filed within two (2) years of the last violation of the FMLA, or three (3) years in the case of a willful violation. Suit can be filed in either state or federal court, although it is generally advisable to file in federal court given the lack of experience state court judges will have with the issue. If the employee can demonstrate a violation, the employer is liable for both monetary damages and equitable relief as may be appropriate, including reinstatement or promotion. On a practical note, the attorney should consider a fee provision for the value of the reinstatement or promotion in the fee contract. The monetary damages may include:(1) the amount of compensation lost as a result of the violation, plus (2) interest on that amount, plus (3) liquidated damages equal to the actual damages and interest.[xvi] However the liquidated damages may be reduced or denied if the court finds that the violation was in good faith or that the employer had reasonable grounds for believing it had not violated the FMLA. Additionally, a successful Plaintiff is entitled to reasonable attorney's fees, expert fees and other expenses in the action.[xvii]
[i]. 29 U.S.C. ''2601, et. seq.
[ii]. See e.g. Thorson v.Gemini, Inc., 205 F.3rd 370 (8th Cir. 2000)
[iii]. 29 U.S.C. '2618(a)
[iv]. 29 U.S.C. '2611(4); See also 29 C.F.R. ''825.104 to 825.109
[v]. 29 U.S.C. '2611(2); 29 C.F.R. '825.111
[vi]. 29.U.S.C. '2612(1)
[vii]. 29 U.S.C. '825.114(a)(2).
[viii]. 29 C.F.R. '825.114(c).
[ix]. 29 U.S.C. '2611(6)
[x]. 29 C.F.R. '825.302; Haggard v. Levi Strauss & Company, 2001 WL 527504 (8th Cir 2001).
[xi].29 U.S.C. '2612(c)
[xii]. 29 U.S.C. '2612(e)
[xiii]. 29 U.S.C. '2613
[xiv]. 29 U.S.C. '2614(a)
[xv]. 29.U.S.C. '2617
[xvi]. 29.U.S.C. '2617(a)
[xvii]. 29 U.S.C. '2617(a)(3)
