FMLA and USERRA

The following outline is part of a presentation that I made in Ann Arbor on September 24, 2009 for an Instititute of Continuing Legal Education seminar entitled "FMLA and USERRA Issues with the Troubled Employee."

I. FMLA Issues.

A. Introduction.

The FMLA was enacted to allow workers flexibility in scheduling time for medical problems and to alleviate some of the tension caused by the competing demands of work and family. Stubl v. T.A. Systems, Inc., 984 F. Supp.1075, 1082 (E.D. Mich. 1997), citing S. Rep. No. 103-3, 103rd Cong., 2nd Sess. 4 (1993), reprinted in 1993 U.S. Code Cong. & Ad. News, 3, 6. The FMLA declares it unlawful for "any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under this subchapter." 29 U.S.C. § 2615(a)(1). The FMLA places affirmative obligations on employers to:

Notify employees of their rights and obligations under the Act, 29 U.S.C. § 2619;

Provide up to 12 weeks of unpaid leave to employees who qualify and provide sufficient notice to their employers, 29 U.S.C. § 2612;

Refrain from disciplining employees for taking leave covered by the FMLA, 29 U.S.C. 2615;

Reinstate employees to the same or equivalent job after their leave, 29 U.S.C. § 2614(a); and

Continue employees’ health care insurance during their absence. 29 U.S.C. § 2614(c).

Most FMLA Litigation results when employers terminate an employee who is on a medical leave of absence or when employers fail to reinstate an employee after an employee returns or is ready to return from a medical leave of absence.

B. Researching FMLA Issues.
There are detailed regulations that explain and interpret the act. See, 29 CFR 825.100 to 825.800. The regulations are available at the US Department of Labor website located here: http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/toc.htm.
The website includes subject headings and hypertext links, which allow for easy navigation and expedites research. The ABA Section of Labor and Employment Law also publishes an excellent reference guide, Ossip, The Family and Medical Leave Act (BNA 2006). The ICLE library has two books, Employment Litigation in Michigan and Employment Law in Michigan-An Employer’s Guide, that include detailed chapters on the FMLA.

C. Employee Eligibility.
To be eligible for FMLA protection, employees must meet the criteria set forth in the statute and its regulations. There are three primary requirements.
12 months of Employment. Employees must have been employed for 12 months at the time the leave of absence was taken. 29 USC 2611(2)(B)(ii); 29 CFR 825.110(a)–(b). To determine eligibility, the 12 month period should be counted backward beginning with date leave is scheduled to begin. 29 CFR 825.110(d). There can be a break in service in counting the 12 month period, so long as the break was less than seven years. (There is an exception for breaks caused by military service obligations).

1,250 Hours. Employees must have worked 1,250 hours in the 12 months preceding the date leave is scheduled to begin. 1,250 hours is roughly equivalent to a 24 hour a week schedule, assuming that the employee missed no time for vacations, sick days, etc. The regulations adopt the Fair Labor Standards Act ("FLSA") definition of "hours worked." 29 CFR 825.110(c)(1).

50 Employees in a 75 Mile Radius. Employees must work at a location that includes at least 50 of the employer’s employees at that location or within 75 miles of that location. 29 CFR 825.110(a)(3). There are special rules for employees who do not work from a fixed work site, such as salesperson or construction workers. For those employees, it is the employer location from which their work is assigned, that governs the 50/75 rule. 29 CFR 825.111(a)(2).

D. Employer Coverage.
50 Employee Threshold. Employers must employ at least 50 employees for each working day during 20 or more calendar workweeks in either the current or preceding calendar year to be regulated by the act. 29 CFR 825.104. The employees may be full or part time, and so long as they are on the payroll roster, they do not need to have received any compensation for the week. (i.e, employees on vacation or a leave of absence are included in the calculation).
Joint Employers. The FMLA regulations recognize the concept of joint employment. When an employee is found to be employed by joint employers, employees from both employers are considered in deciding upon the 50 employee threshold. 29 CFR 825.106(a). Common examples of joint employment include cases where a temporary employment agency supplies employees to another employer. Differing obligations apply to both employers, depending upon which employer is deemed to be the primary employer. Typically, the employer that provides the employee’s paycheck will be deemed to be the primary employer. 29 CFR 825.106(c). "Integrated employers" are also combined to determine the 50 employee threshold. 29 CFR 825.104(c).

Public Agencies. Public agencies, including Federal and State government agencies, and local agencies, including public schools, are governed by the FMLA, regardless of whether they meet the 50 employee threshold. 29 CFR 825.104(a).

E. The Reasons for Which FMLA Leave May be Taken.
Employees may take FMLA leave for (1) for the birth of the employee’s child and to care for a newborn child, (2) for the placement of a child with the employee for adoption or foster care, (3) to care for the employee’s spouse, child, or parent with a serious health condition, or (4) because the employee has a "serious health condition" that makes the employee unable to perform one or more of the essential functions of his or her job. 29 USC 2612(a)(1) and (a)(3); 29 CFR 825.112(a)(1)–(6).

What is a Serious Health Condition? To qualify for FMLA leave (for reasons other than caring for a new child or for the birth of a child), an employee must show that he or a family member needing his care suffers from a "serious health condition." A "serious health condition" is defined as an "illness, injury, impairment, or physical or mental condition that involves inpatient care...or continuing treatment by a health care provider." 29 U.S.C. § 2611(11).

Inpatient Care. There is little controversy over this term. It means an overnight stay at a hospital or other medical care facility. 29 CFR 825.114.

Continuing Treatment by a Health Care Provider. The term "continuing treatment by a health care provider" includes both episodic and "chronic" conditions. For non-chronic condition, the most commonly used definition of serious health condition is a period of incapacity requiring an absence from work for more than three consecutive days, provided that this absence also involves two or more visits to a health care provider or one visit to a health care provider that results in a regimen of continuing treatment supervised by the health care provider. 29 CFR 825.115(1)-(2). If the employee is relying upon the two or more visits component of the definition, the two visits do not necessarily have to take place during the period of incapacity. They must occur within 30 days of the first day of incapacity, unless extenuating circumstances exist. 29 CFR 825.115(a)(1). The first treatment must occur within seven days of the first day of incapacity. 29 CFR 825.115(a)(3).

Chronic Conditions. The regulations define "chronic" serious health conditions as a period of incapacity that (A) requires periodic visits for treatment by a health care provider, or by a nurse or physician’s assistant under the direct supervision of a health care provider; (B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (C) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.). 29 C.F.R. § 825.114(a)(2)(iii).

In Miller v. GB Sales & Service, Inc., 275 F. Supp. 2d 823 (E.D. Mich. 2003), the court held that the plaintiff’s panic disorder, related to her depression, was a serious health condition. The plaintiff in Miller was fired for excessive absenteeism. In Conrad v. Eaton Corp., 303 F. Supp. 2d 987 (W.D. Iowa 2004), the court also found that the employee’s major depression was a serious health condition. In Conrad, the employee was fired for engaging in certain threatening behavior.
Incapacity. The FMLA regulations state that an employee must suffer from a period of incapacity, further described as "(i.e., inability to work, attend school or perform other regular activities of daily living due to the serious health condition, treatment for or recovery therefrom.)." 29 C.F.R § 825.114(a)(2) (emphasis added). The regulations thus contemplate that an employee could be incapacitated from work but not from other activities.

The case law also recognizes that the incapacity definition relates to the particular job of the FMLA plaintiff. It does not mean the same as incapacity under the ADA. See, Hulbert v St. Mary’s Health Care Sys., 439 F.3d 1286, 1295 (11th Cir. 1986) and Steckloff v St. John’s Mercy Health Sys., 218 F.3d 858, 861 (8th Cir. 2000)("[W]e hold that a demonstration that an employee is unable to work in his or her current job due to a serious health condition is enough to show that the employee is incapacitated, even if that job is the only one the employee is unable to perform.").

Common/Minor Ailments. The definition of continuing treatment by a health care provider does not include routine physicals or examinations, nor does it include common ailments such as colds, the flu, headaches (other than migraines), routine dental problems, and upset stomachs unless complications arise. 29 CFR 825.113(c)-(d). Yet, such common ailments can qualify so long as the objective criteria of two doctor visits and more than three days of incapacity are met. This "objective test for ‘serious health conditions’ [] avoids the need for employers - and ultimately courts - to make subjective decisions about [whether an illness qualifies under the statute]." Thorson v. Gemini, Inc., 205 F.3d 370, 380 (8th Cir. 2000). See also, Brannon v. OshKosh B’Gosh, Inc., 897 F. Supp 1028, 1036 (M.D. Tenn. 1995) (Section 825.114 constitutes a "bright-line test" for determining whether an illness is a "serious health condition."); See, Corcino v Banco Popular De Puerto Rico, 200 F. Supp.2d 507 (D. Virgin Islands 2002) (pharyngitis which required employee to visit her doctor and remain off work for six days was a ‘serious health condition’ within meaning of FMLA).

F. FMLA Employee Notice Requirements.
Employee Notice. One common misconception about the FMLA is than an employee must fill out FMLA paperwork or use the words "FMLA" or "leave of absence" in order to be protected from being fired during if the employee misses work due to an injury or illness. But an employee only needs to give the employer enough information so that the employer may conclude that the employee has a serious health condition necessitating his absence. 29 CRF 825.301. To be entitled to FMLA protected leave, a plaintiff must show that he gave his employer notice of the need for a leave of absence and a qualifying reason for the leave. Cavin v Honda of Am. Mfg., 346 F.3d 713, 723-24 (6th Cir. 2003).

The Timing and Content of the Notice. The FMLA regulations provide that notice of unforeseeable leave should be given "as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303(a). The original regulation stated that, "It is expected that an employee will give notice to the employer within no more than two working days of learning of the need for leave, except in extraordinary cases where such notice is not feasible." Id. The regulation provided that "in the case of a medical emergency requiring leave because of an employee’s own serious health condition... written advance notice pursuant to an employer’s internal rules and procedure may not be required ...." Id.
This regulation was revised based on employer’s objections that lack of notice for unscheduled absences was wreaking havoc with production schedules. The new rule provides that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances.
The regulations also state, "in the case of medical conditions, the employer may find it necessary to inquire further to determine if the leave is because of a serious health condition and may request medical certification to support the need for such leave." 29 U.S.C. § 825.302(c).

No Magic Words Required. An employee "does not have to expressly assert his right to take leave as a right under the FMLA." Cavin, 346 F.3d at 723. Nor is the failure to use the term ‘leave’ or the phrase ‘leave of absence’ of any consequence in assessing whether the employer received sufficient notice pursuant to the requirements of the FMLA. Id at 725. Instead, "the critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition." Id at 723.
Method of Providing Notice. Notice may be provided "in person or by telephone, telegraph, facsimile (‘fax’) machine or other electronic means." 29 C.F.R. § 825.303(b). In Cavin, the Sixth Circuit determined that Mr. Cavin put his employer on notice when he told a security officer employed by the company that he "was injured in a motorcycle accident" and that "he just got out of the hospital." Id at 725. Courts recognize that once an employer is on notice of an employee’s illness, the employer is obligated to inquire further with regard to whether particular absences are FMLA protected.

In Miller v GB Sales & Service, Inc., 275 F. Supp. 2d 823 (E.D. Mich. 2003), the court found that the employer unlawfully retaliated against an employee when it terminated her for absences, some of which were necessitated by her diabetes and depression. The plaintiff in Miller missed work frequently because of her illnesses. She did not seek FMLA coverage for her absences until after she was fired. GB Sales & Service, Inc. ("GB") argued "that the law did not require it to designate every one of Miller’s absences as FMLA leave merely because her supervisors were aware of Miller’s diabetes and depression." Id at 829. The court did not agree. Id.

In Rodriguez v. Ford Motor Co., 382 F. Supp.2d 928 (E.D. Mich. 2005), the court found a genuine issue of material fact as to whether the employee had provided timely notice to his employer about FMLA coverage for previous absences. Ford Motor Company had sent the plaintiff a notice that he was deemed to have quit by not showing up for work for five days. After Ford mailed the five day quit letter, the plaintiff’s treating physician sent a letter to Ford advising the company that the plaintiff was unable to work until further notice. The court stated, "Therefore, plaintiff may have enjoyed the protection of the FMLA before an actual designation by defendant Ford that the absences were or were not qualifying." Id.

Notice for Foreseeable Medical Leaves of Absence. Employees must provide 30 days’ advance notice of their need to take an unpaid FMLA leave when the leave is foreseeable (e.g., childbirth, newborn care, placement of a child for adoption or foster care, or planned medical treatment for a serious health condition of the employee or a family member). If the FMLA leave is for planned medical treatment, the employer may request a change in the scheduling of the leave to address the employer’s business needs. If such a request is made, the employee must make a reasonable effort to schedule the treatment to not unduly disrupt the operations of the employer so long as the change is approved by a health care provider. 29 USC 2612(e)(1), (2); 29 CFR 825.302(e).

G. Employer Notice Requirements.
Employers under the new FMLA regulations are required to notify employees of their eligibility for FMLA and rights and responsibilities under the act within 5 days after an FMLA qualifying leave is requested, absent extenuating circumstances. 29 CFR 825.300 (b). Employer’s must also post information about employees FMLA rights and include such information in employee handbooks, if such handbooks are distributed to employees. 29 CFR 825.300(a). There is no private cause of action for failing to post information about FMLA rights, but the failure may prevent the employer from relying upon the employee’s failure to follow through on one or more of its notice requirements.
Prototypes of the suggested Eligibility Notices and Certification forms, Forms WH-380-E and F, WH-381 and WH-384 are available on the DOL’s FMLA web page. http://www.dol.gov/esa/whd/fmla/index.htm

Notice Content.
The Designation Notice must contain the following information:
Notice of whether or not the absence is designated as FMLA-qualifying, 29 CFR 825.300(d)(1)
Whether the employer requires paid leave to be substituted for unpaid FMLA leave or if paid leave taken must be counted as FMLA leave, 29 CFR 825.300(d)(1)
Whether the employer will require the employee to present a fitness-for-duty certification to be restored to the same or an equivalent position, 29 CFR 825.300(d)(3), .312
The amount of leave that will be counted against the employee’s FMLA leave entitlement in hours, days or weeks, if known, 29 CFR 825.300(d)(6).
According to the new regulations:
If it is not possible to provide the hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement (such as in the case of unforeseeable intermittent leave), then the employer must provide notice of the amount of leave counted against the employee’s FMLA leave entitlement upon the request by the employee, but not more often than once in a 30-day period and only if leave was taken in that period. 29 CFR 825.300(d)(6).

H. Pay and Benefits During a Leave of Absence.
The FMLA does not require that an employer pay an employee during a medical leave of absence. But the act does require that employee benefits be maintained during the leave. 29 USC 2614(c)(1); 29 CFR 825.209(a). The employer is required to maintain the same group plan benefits for employees on FMLA leave as the benefits that were in effect for the employee before the leave. The employer must also maintain the same employer contribution, if any, towards the benefits during the period of leave. 29 CFR 825.209(a).

I. Restoration Rights after FMLA Leave.
Employees are entitled to be restored to the positions held previously or an equivalent position. 29 USC 2614(a)(1). The regulations provide:
General rule. On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence. See also Sec. 825.106(e) for the obligations of joint employers.
29 CFR 825.214. This is sometimes referred to as the "entitlement" theory of FMLA liability or the "interference" theory. The right to restoration of employment exists under the entitlement theory without the necessity of showing that the employer was motivated by an anti-FMLA bias in deciding not to reinstate the employee. 29 CFR 825.216(a).
The right to reinstatement is not absolute, however. Another FMLA regulation states: "An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period." 29 CFR 825.216(a). The same regulation provides that "An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment." (Id).

Two recent 6th Circuit cases show that the failure to reinstate an employee on the grounds that the employee was a poor performer, is fraught with peril for the employer. See, Arban v West Publishing Co., 345 F.3d 390, 401 (6th Cir. 2003)(Jury verdict for plaintiff employee upheld even though "West presented considerable evidence that the decision to terminate Arban had been made before Arban went on medical leave, but that his actual termination had been deferred until after the holidays."). Moorer v Baptist Memorial Health Care System, 398 F.3d 469, 490 (6th Cir. 2005) (Where termination decision was made after FMLA leave, jury could reasonably infer that employee would not have been fired but for his leave of absence).

J. No Fault Attendance Policies.
Many manufacturing employers maintain policies that provide for progressive discipline, leading up to discharge, for employees who miss work or are tardy. FMLA protected absences may not be counted under such "no-fault" attendance policies. 29 CFR 825.220(c). Employers who fail to consider whether absences leading to discharge were protected FMLA leave absences have been found to have violated the FMLA.

The case of Bradley v. Mary Rutan Hosp. Assoc., 322 F.Supp.2d 926 (S.D. Ohio 2004), is instructive. In Bradley, the court found that there were genuine issues of material fact regarding whether the employee’s two days of no call-no show absences were the primary determining factor in the employer’s decision to terminate the employee. In Bradley, there was no dispute that the employee failed to report to work or call in on September 24 and September 25, 2001. On September 26, the employee called in to state that she was having car trouble and would arrive later. When the employee called the second time she was notified she had been terminated. The employee was terminated on the basis of the two no call-no shows and a record of excessive absenteeism.

The court found that plaintiff had at least one absence point assessed against her in connection with time off taken to care for her spouse with a serious health condition. The court then noted that the employer had written to the employee, "As a result of your continued absenteeism coupled with your refusal to return to work from leave, you [sic] actions are inexcusable and you have abandoned your job." The court held that because the employer cited the employee’s continued absenteeism as part of the justification for termination, "A reasonable jury could conclude that either defendant ‘discriminated against Bradley for taking leave to care for her husband’ or that Mary Rutan used the leave as a ‘negative factor’ in its decision to terminate her." Id at 946. The court stated that, "A termination based only in part on an absence covered by the FMLA, even in combination with other absences, may still violate the FMLA." Id at 946-947.

K. Discrimination Claims.
The failure to reinstate or the termination of an employee during a leave of absence can trigger liability under both the entitlement/interference theory and the "discrimination" theory. Both claims are typically pleaded in a complaint.

L. Procedural Issues.
Statute of Limitations. The limitations period for filing an FMLA complaint is two years, but the limitations period is extended to three years if a "willful" violation of the act is shown.
No Exhaustion. Unlike Title VII, there is no requirement that a complaint or charge be filed with an administrative agency before a complaint may be pursued in court. The US Department of Labor has authority to investigate claims of FMLA violations. The DOL has authority that is similar to the EEOC.
Role of the US Department of Labor. The US DOL has also issues regulations interpreting the act. See, 29 U.S.C. 2654. "Regulations promulgated pursuant to such an express delegation of authority are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Miller v. AT&T Corp., 250 F.3d 820, 833 (4th Cir. 2001).

M. Remedies.
Both equitable relief, such reinstatement or promotion and monetary relief, such as back pay, lost fringe benefits and interest is available under the act. Reasonable attorney fees, expert witness fees and other court costs are also available to a successful plaintiff. Liquidated damages, equal to the award of economic damages are to be awarded to a successful plaintiff unless the employer can show that it actions were taken in good faith. See, 29 USC § 2617(a)(1)(A) and (a)(3). See, Elwell v. University Hosps Home Care Services, 276 F.3d 832, 840 (6th Cir. 2002) ("Although in the final analysis, we review a district court’s decision on liquidated damages for abuse of discretion, that discretion must be exercised consistently with the strong presumption under the statute [FMLA] in favor of doubling.").
　
II. Military Family Leave and USERRA

A. National Defense Authorization Act (NDAA) for 2008.
Section 585(a) of the NDAA amended the FMLA to provide two new leave entitlements.
Military Caregiver Leave. Eligible employees who are family members of covered service members are entitled to take up to 26 weeks of leave in a "single 12-month period" to care for a covered service member with a serious illness or injury incurred in the line of duty on active duty. FMLA protection is, thus, longer for family of service members than it is for other employees. The scope of the employees is also expanded to include additional family members (next of kin) beyond the protection available to family members of non-military personnel. For example, only care for an employee’s minor children is covered by the FMLA. Leave may be taken the care of a service member who is a child of the employee, regardless of the child’s age.
Qualifying Exigency Leave. A new military leave is now available to assist families of the members of the National Guard and Reserves. This provision makes the normal 12 weeks of FMLA leave available to eligible employees with a covered military member when the member is called to active duty or is on active duty. Employees are permitted protected FMLA time off for military events and related activities, childcare and school activities, financial and legal arrangements, counseling, and rest and recuperation time.

B. The Uniformed Services Employment and Reemployment Rights Act (USERRA).
USERRA, 38 USC 4301 et. seq., provides rights and remedies to veterans in connection with their employment following or during their military service. Employees who are called to military service are entitled to be reinstated to any civilian job held before deployment. This job protection is similar to FMLA job protection in the sense that veterans must be returned to the same job or one with equivalent pay and benefits as if the service person had been continuously employed. An employer is not required to reemploy a person under this chapter if-- the employer's circumstances have so changed as to make such reemployment impossible or unreasonable; or, for certain persons, if such employment would impose an undue hardship on the employer. See, 38 USC 4312(d).
The USEERA also prohibits employers from discriminating against employees on the basis of past or the prospect of future military service. See, 38 US 4311.
　
III. New FMLA Forms
On November 17, 2008, the DOL published its final rule to implement the amendments to the FMLA signed into law by former President Bush in January, 2008. The forms follow this paper and include:
　
WH-381 Notice of Eligibility and Rights & Responsibilities (FMLA)
WH-384 Certification of Qualifying Exigency for Military Family Leave
WH-385 Certification for Serious Injury or Illness of Covered Servicemember
WH-380-E Certification of Health Care Service Provider for Employee’s Serious Health Condition (FMLA)