FEDERAL FAMILY AND MEDICAL LEAVE ACT
A. Origins, Rationale of Act
The Federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§2601-2654, was enacted in 1993 to protect employees from discharge when they must take leave for a serious illness that renders the employee unable to perform the functions of his or her position, for the serious illness of a close family member, or for the birth, adoption or placement of a child.
B. Who is Covered?
Employers who employ more than 50 employees may be obligated by the FMLA to provide unpaid leave to eligible employees. An employee is generally eligible if she/he has been employed -
(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title: and
(ii) for at least 1,250 hours of service with such employer during the previous 12-month period. 29 U.S.C. §2611(2)(A)
Under the FMLA regulations, the employee is required to give the employer 30 days notice before leave is to begin if the need for leave is foreseeable. 29 C.F.R. §825.302. However, notice may also be given "as soon as practicable" if the need for leave was due to a change in circumstances, medical emergency, or other unforeseeable circumstances. Id. And, unlike the detailed substantive notice requirements imposed upon the employer, the employee's request may be verbal and need not specifically request FMLA leave or mention FMLA, but need only state that the leave is needed for a medical condition likely to be covered under the Act. Id.
Once the employee communicates the need for leave to the employer, the burden is then placed on the employer to question the employee and obtain the necessary details to determine whether the leave should be designated as FMLA leave. Id. Moreover, the employee is not required to provide certification in the first instance and, instead, the burden is on the employer to request certification. 29 U.S.C. §2613(a). In sum, an employer must be alert as to the possible FMLA consequence of all employee leave requests because the employer bears the greater burden of FMLA compliance. See Williams v. Schuller In'l., Inc., 29 Fed.Appx. 306 (6th Cir. 2002)(summary judgment granted against employer because there were issues of genuine material fact as to whether the employer made reasonable efforts to evaluate the plaintiff's leave claim); Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847 (8th Cir. 2002)(plaintiff's call requesting time-off for "depression again" was sufficiently valid notice under FMLA.) But see Collins v. NTN-Bower Corp., 272 F.3d 1006 (7th Cir. 2001)(plaintiff who only stated that she was "sick" failed in her obligation to give notice under the FMLA.); Gay v. Gillman Paper Co., 125 F.3d 1432 (11th Cir. 1997)(plaintiff, who was hospitalized for a nervous breakdown, failed to provide sufficient information when her husband deliberately withheld information concerning the true nature of the illness.)
C. Employer's Obligations
If an employee is granted FMLA leave, what are the employer's pay obligations?
- If a qualifying employee has earned and is given paid leave, annual leave, vacation, or sick leave, the employer must, of course, pay the employee at the regular pay rate.
- If the employee qualifies for FMLA leave, but has no accrued paid leave, the employer must keep the employee on the payroll to the extent required by the FMLA, but need not pay the employee.
If the employee works overtime some days during a pay period in which the employer has granted him or her paid FMLA leave, there is no obligation to pay overtime pay unless and until such employee works more than 40 hours in that workweek.
Under the FMLA, the employer must timely designate FMLA leave in writing. Specifically, an employer must: (1) promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave; (2) confirm, in writing, the designation of FMLA leave no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday); and 3) if there is a dispute between an employer and an employee as to whether paid leave qualifies as FMLA leave, attempt to resolve the dispute through discussions between the employee and the employer. 29 C.F.R. §825.208.
If the employer fails to timely designate the leave, the absence is protected under the FMLA, cannot be used for adverse employment action and may not be used to reduce an employee's eligible FMLA leave. 29 C.F.R. §825.208. If the employer later makes the proper FMLA designation, the leave may be charged against the employee's FMLA leave prospectively, but not retroactively. Id. There are two exceptions to these designation requirements: 1) when the employer did not learn of the reason for the absence until the employee's return, or 2) the employer made a preliminary designation and notified the employee pending receipt of medical certification or requests for information. Id.
In Ragsdale v. Wolverine World Wide, 122 S.Ct. 1155 (2002), the Supreme Court's first FMLA case, the plaintiff brought suit against her employer challenging her termination on the ground that she was entitled to an additional 12 weeks of FMLA because Wolverine had failed to formally notify her that any portion of her 30 week absence had been treated as FMLA leave. The Supreme Court held that the plaintiff was not entitled to an additional 12 weeks of leave and that the strict liability penalty imposed by 29 C.F.R. §825.700(a) was contrary to the Act. Specifically, the Court determined that the regulation conflicted with the FMLA's purpose by failing to tie the penalty (an additional 12 weeks of leave) to any actual harm the employee may have suffered due to the employer's failureto give notice of its designation of FMLA leave.
Despite this holding, the Court did not invalidate the notice requirement and employers must still remain diligent in complying with the two-day notice imposed by the FMLA and its regulations. The decision also left open the possibility that an additional 12-week FMLA leave penalty would be valid if the employee establishes that he or she suffered actual harm as a result of the employer's failure to provide notice.
D. Calculating the "12-month" Period
If an employer fails to choose and notify its employees of its method for determining the 12-month period for measuring the use of FMLA leave, an employee can use whichever method is most beneficial to the employee until, and for 60 days thereafter, the employer selects a method. 29 C.F.R. §825.200.
An employer must give 60-days notice of its chosen method and can apply it only prospectively. There are four alternative methods of measuring FMLA leave: 1) the calendar year; 2) any fixed 12-month period; 3) the 12-month period "measured forward" from the date of an employee's first FMLA leave begins, or 4) a "rolling" 12-month period measured backwards from the date an employee uses any FMLA leave. 29 C.F.R. §825.200.
It is important to note that methods 1 and 2 above mean that an employee would be entitled to up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected. An employee could, therefore, take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year (resulting in a possible 24 consecutive weeks of leave). Under Method 3, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken; the next 12-month period would begin the first time FMLA leave is taken after completion of any previous 12-month period (allowing for "stacking" of up to almost 24 consecutive weeks). In contrast, method 4 prevents "staking" because each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks that has not been used during the immediately preceding 12 months. Id.
E. Employee Protections
If the employee qualifies, the employer must grant the employee "a total of 12 workweeks of leave during any 12-month period for one or more of the following:
(A.)Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health problem.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. 29 U.S.C. §2612(a)(1).
FMLA may also be taken intermittently when medically necessary for an employee, spouse, son, daughter, or parent who has a serious health condition.
The FMLA regulations define a "serious health condition" as an illness, injury, impairment, or physical or mental condition that involves, in summary, 1) in-patient care or an overnight stay in a medical care facility and any subsequent treatments; 2) pregnancy or prenatal care; 3) a condition involving incapacity for more than three consecutive days; 4) a chronic serious health condition; 5) long-term or permanent incapacity; 6) an absence to receive or recovery from multiple treatment for a condition likely to result in incapacity if not treated; and 7) an absence to receive or recover from multiple treatment for restorative surgery after an accident or injury. 29 C.F.R. §825.114.
Nonetheless, the term "serious health condition" is defined broadly and, as a result; contentious litigation has ensued concerning what types of illnesses qualify. Thus, a "serious health condition" has been held to include migraine headaches, Handy v. GTE N., Inc., 896 F.Supp. 816 (N.D. Ind. 1995), an episode of the flu, Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001), a flare up of an ulcer, Victorelli v. Shadyside Hospital, 128 F.3d 184 (3rd Cir. 1997), and a painful chronic shoulder condition, Santos v. Shields Health Corp., 1998 U.S. Dist LEXIS 2597 (D. Mass 1998).
The FMLA protects eligible employees against discharge. See 29 U.S.C. §2614. Basically, unless certain exceptions apply (e.g., to avoid injury to the employer's operations or if the employee is among the highest paid 10% of the employees), the employee on return from FMLA leave is "entitled" -
(A) to be restored by the employer to the position of employment held by the employee when the leave commenced: or
(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. 29 U.S.C. §2614(a)(1).
However, an employee is not entitled to any right or benefit that he or she would not have otherwise been qualified to receive had he or she not taken the leave. 29 U.S.C. §2614(a)(3). For example, an employee would not have the right to be restored to his or her position if that position would otherwise have been eliminated in a reorganization or a reduction-in-force.
F. Enforcement
Rights established under the FMLA are enforceable through civil actions by the Department of Labor ("DOL") or by the affected employee. Damages for an employer found liable for violations of the FMLA may include wages, salary, benefits, or other compensation lost by the employee, plus interest on those damages. In addition, the amount of damages will be doubled as liquidated damages, unless the employer proves that it acted in good faith and reasonably believed that it was not violating the statute. An employee may also recover consequential damages sustained as a direct result of the violation, such as the cost of providing care for a child or parent, up to a sum equal to 12 weeks of wages or salary. Appropriate equitable relief is also available, including employment, reinstatement and promotion. A prevailing party is also entitled to recover reasonable attorneys' fees, expert witness fees and other costs of the action. See 29 U.S.C. §2617(a) and (b).
The FMLA prohibits discrimination or retaliation for exercising rights under that law. 29 U.S.C. §2615; 29 C.F.R. §825.220. However, employees receive no protection if they are discharged simply for poor performance, for taking too much leave, for offering insufficient medical documentation to support their leave request or for failing to comply with reasonable time and attendance rules.
An action to enforce rights under FMLA may be brought no later than two years after the date of the last event constituting the alleged violation. However, in the case of willful violation, an action may be brought within three years. 29 U.S.C. §2617(c).
G. Resolution
Informal resolution is greatly preferred to litigation and an employer should explore ways of accommodating employees who have particular value to the company. For example, if an employee uses all of their FMLA leave, and if the employer cannot retain the employee, the employer could consider some form of severance pay arrangement to ease the employee's transition into the job market.
D.C. FAMILY AND MEDICAL LEAVE ACT
A. Scope of Act
Unlike the federal Family and Medical Leave Act, which applies only to employers with 50 or more employees, the District of Columbia Family and Medical Leave Act of 1990, D.C. Code Ann. §§32-501-517, formerly §§36-1301-1317, ("DC FMLA"), applies to any employer who employs 20 or more persons in the District of Columbia. D.C. Code Ann. §42-516(2). Furthermore, the DC FMLA differs in scope from the federal FMLA in that an employee is entitled to a total of 16 workweeks of family leave during any 24-month period (in contrast, the federal FMLA provides for 12 workweeks in a 12-month period). D.C. Code Ann. §32-502(a).
An "employee" is defined under the DC FMLA as any individual who has been employed by the same employer for 1 year without a break in service and has worked at least 1,000 hours during that 12-month period (as opposed to the 1,250 hours of service under the federal FMLA). D.C. Code Ann. §32-501(1).
B. Employee Protections
The DC FMLA provides a qualified employee with 16 workweeks of leave during any 24-month period when the employee becomes unable to perform the functions of the employee's position because of a serious health condition. D.C. Code Ann. §32-503. In addition, an employee may also request FMLA leave for one of the following:
- the birth of a child of the employee,
- the placement of a child with the employee for adoption or foster care,
- the placement of a child with the employee for whom the employee permanently assumes and discharges parental responsibility,
- the care of a family member of the employee who has a serious health condition. D.C. Code Ann. §32-502(a)(1)-(4).
The term "family member" is more expansive under the DC FMLA and includes a person to whom the employee is related by blood, legal custody, or marriage; a child who lives with an employee and for whom the employee permanently assumes and discharges parental responsibility; or a person with whom the employee shares or has shared, within the last year, a mutual residence and with whom the employee maintains a committed relationship. D.C. Code Ann. §32-501(4). This definition is unlike the federal FMLA, which restricts its protections to a spouse, child or parent.
C. Employer's Obligations
As under the federal FMLA, the employer is not required to provide paid family leave. However, the employee may elect to use any paid medical or sick leave for his or her FMLA leave. D.C. Code Ann. §32-503(b). The employer and employee must agree that the employee may use paid vacation, personal, or compensatory leave as medical leave. Id. This differs from the federal law in that the DC law does not permit the employer to unilaterally require the employee to substitute any of his or her accrued paid leave for any part of the FMLA leave. Additionally, any such paid leave counts against the 16 workweeks of allowable FMLA leave. Id. See also Harrison v. Children's Nat'l Med. Ctr., 678 A.2d 572, 575 (1996)(the 16 week protected period includes both paid and unpaid sick leave and is the absolute maximum time that employee may claim FMLA leave.)
An employee who takes FMLA leave cannot lose any employment benefit or seniority accrued before the date on which the leave commenced. D.C. Code Ann. §32-505. Furthermore, the employee's coverage under any group health plan must continue during the leave period, but the employee remains responsible for any contributions he or she would have been required to make during the time period. Id.
Upon return from FMLA leave, the employee generally must be restored to his position or to an equivalent position with equivalent benefits, pay, seniority, and other terms and conditions. Id. The employer may only deny restoration of employment to a salaried employee if: 1) the employee is among the 5 highest paid employees of an employer of fewer than 50 persons or among the highest paid 10% of an employer with 50 or more employees; and 2) the employer demonstrates that denial of restoration of employment is necessary to prevent substantial economic injury to the employer's operations and the injury is not directly related to the employee's FMLA leave; and 3) the employer notifies the employee of the intent to deny restoration of employment and the basis for the decisions. Id.
D. Employee's Obligations
Similar to the federal FMLA, if the necessity for the leave is foreseeable based on an expected birth or placement of a child, or based on planned medical treatment or supervision, the employee is required to provide the employer with reasonable prior notice and make reasonable effort to schedule the treatment, subject to the health care provider's approval, in a manner that does not disrupt unduly the operations of the employer. D.C. Code Ann. §32-502.
The DC FMLA also has consistent certification requirements as the federal law. An employer may require that a request for family leave to care for another or medical leave due to a serious health condition be supported by a health care provider's certification specifying: 1) the date on which the serious health condition commenced, 2) the probable duration of the condition; 3) the appropriate medical facts within the knowledge of the health care provider that would entitle the employee to take FMLA leave; and 4) either a statement that the employee is unable to perform the functions of the employee's position or an estimate of the amount of time that the employee needs to care for the family member. D.C. Code Ann. §32-504. The employer, at its own expense, may also require the employee to provide additional certification, up to three, if the employer has reason to doubt the validity of the first employee-provided certification. Id. The third certification is binding on the employer and employee. Id. Additionally, the employer may require that the employee obtain subsequent recertification on a reasonable basis. Id.
E. Enforcement
An employee may file an administrative complaint within one year of the occurrence or discovery of the alleged FMLA violation. D.C. Code Ann. §32-509. Alternatively, the employee may bring a civil action within one year (rather than the two to three year period provided under federal law). D.C. Code Ann. §32-510. The Act does not require exhaustion of administrative remedies prior to filling a civil action in court. See Simmons v. District of Columbia, 977 F.Supp. 62, 65 (D.D.C. 1997).
An employee who prevails may recover: 1) any wages, salary, employment benefits, or other compensation denied or lost to the employee due to the violation plus interest; and 2) an amount equal to the greater of lost wages and benefits or consequential damages, not to exceed an amount equal to 3 times the amount of actual lost wages and benefits, plus any medical expenses not covered by health insurance of the employee. D.C. Code Ann. §32-509(b)(6); D.C. Code Ann. §32-510(c). Damages may be reduced, however, for an employer who proves that the violation occurred in good faith and that the employer had reasonable grounds to believe that its action or omission was not in violation of the Act. Id. In addition, the DC FMLA authorizes the award of costs and reasonable attorney's fees to the prevailing party. D.C. Code Ann. §32-509(b)(7); D.C. Code Ann. §32-510(c).