Family and Medical Leave Act Basics
The Family and Medical Leave Act of 1993 (FMLA), grants eligible employees the right to 12 weeks of unpaid leave per year under specified circumstances related to family healthcare and childbirth, and 26 weeks of unpaid leave per year (with the passage of amendments in 2008) for military caregiver leave or in exigent circumstances relating to the National Guard or Reserves.
FMLA Eligibility Guidelines
Employees become eligible by working:
- For an employer with at least 50 employees,
- For the employer for at least 12 months, and
- At least 1,250 hours in the previous year.
Eligible employees are expressly authorized by the act to take leave upon the birth of a child by the employee or the employee’s spouse, or by the placement of a child for adoption or foster care with the employee.
The act also applies when the employee is needed to care for a child, spouse or parent who has a serious health condition, and when the employee is unable to perform employment duties because of her own serious health condition.
Under the FMLA regs, a serious health condition is one requiring an overnight stay in a hospital, hospice or residential medical care facility or a period of incapacity requiring more than three calendar days’ absence and two visits to a healthcare provider.
The first healthcare provider visit must occur within seven days of the first day of incapacity and the second visit must occur within 30 days. For chronic health conditions, the employee must make at least two visits to a healthcare provider per year.
A serious health condition can also involve a period of incapacity due to pregnancy, a chronic serious health condition (like asthma, diabetes or epilepsy) or a permanent or long-term condition like Alzheimer’s, a severe stroke or the terminal stages of a disease.
An employee can also take intermittent leave – for a few days or even a few hours – when “medically necessary.” Employees must ask for intermittent leave (as opposed to a specific block of time).
FMLA Notice Requirements
The FMLA requires employees to give employers sufficient notice, usually 30 days, to prevent unduly disrupting employer operations. However, lesser notice may be sufficient when a 30-day notice is impossible.
Under the new regulations, employees have to follow the employer’s usual and customary call-in procedures for reporting an absence unless unusual circumstances exist to excuse that lack.
The FMLA also requires employers to give notice to employees who request leave. Under the new regulations, the notice has to be given within five business days and must contain the following:
- A statement that the leave will be counted against the employee’s annual FMLA entitlement,
- Any requirements for the employee to furnish medical certification of a serious health condition,
- A statement of the employee’s right to substitute paid leave and whether the employer will require the substitution of paid leave,
- Any requirement for the employee to make any premium payments to maintain health benefits,
- Any requirement for the employee to present a fitness-for-duty certificate to be restored to employment,
- If the employee is a “key employee,” a statement explaining that status and the potential consequence that restoration may be denied following the leave,
- A statement of the employee’s right to restoration to the same or an equivalent job upon return from leave, and
- A statement of the employee’s potential liability for payment of health insurance premiums paid by the employer during the leave if the employee fails to return to work after the leave.
Leave of Absence Judicial Decisions
Schaar v. Lehigh Valley Health Services - A Pennsylvania medical receptionist was diagnosed with a urinary tract infection and low back pain. She got a prescription for antibiotics from her doctor, who also provided a note stating that it was likely she’d be able to return to work within a day or two, though it was possible she wouldn’t be able to return to work after three days. She stayed out for a week and was fired for performance reasons. When she sued under the FMLA, she presented her doctor’s note and her testimony that she was incapacitated. A federal court ruled that she failed to prove she had a “serious health condition” under the act. However, the Third Circuit held that her testimony, combined with the doctor’s note, was sufficient to prove she had a serious health condition. The court remanded the case for a determination of whether she provided sufficient notice of her need for leave and whether she was improperly fired. Schaar v. Lehigh Valley Health Services, Inc., 598 F.3d 156 (3d Cir. 2010).
Stimpson v. UPS - While riding his bike, a UPS employee in Michigan was hit by a car. He refused medical treatment at the scene, but went to the emergency room that night. Doctors noted contusions on his back and legs and prescribed pain medication, but he didn’t fill the prescription. He returned to the ER the next night with back pain, but again refused to fill the prescription for pain medication. He called his supervisor to report that he’d been struck by a car and submitted vague doctors’ reports that contained no details. After UPS fired him for unexcused absenteeism, he sued under the FMLA. The Sixth Circuit ruled against him, finding that his contusions and sore back did not amount to a serious health condition. Stimpson v. UPS, 351 Fed.Appx. 42 (6th Cir. 2009).
Burnett v. LFW Inc. - A janitor for a property management company in Illinois notified his employer that he was having medical problems, including a weak bladder. He also told his supervisor he was having a biopsy to determine whether he had prostate cancer. After the biopsy, he returned to work with a temporary restriction on heavy lifting and a treatment plan, which his supervisor allegedly ignored. He said he was going home because he felt sick. The next day he was fired. After being diagnosed with prostate cancer, he sued under the FMLA and ADA. His FMLA suit was allowed to move forward. Even though he didn’t know of his diagnosis until after he was fired, he was entitled to FMLA protection. However, he could not show that he was disabled under the ADA. Burnett v. LFW Inc., 472 F.3d 471 (7th Cir. 2006).
Perry v. Jaguar of Troy - When a company refused to allow an employee time off to care for his 13-year-old son who had severe attention deficit disorder, the employee sued under the FMLA. A Michigan federal court ruled in favor of the company, and the Sixth Circuit Court of Appeals affirmed. Here, the son did not qualify as having a serious health condition because even though he saw his doctor every six months to monitor his medication, he was not incapacitated during the requested leave time. He was able to attend school and do the same activities most children do; he simply had to be watched all the time. Perry v. Jaguar of Troy, 353 F.3d 510 (6th Cir. 2003).
Russell v. North Broward Hospital - A clerical worker at a Florida hospital was disciplined three times for unscheduled absences and was given a final written warning threatening suspension and possible termination. Later, she slipped and fell at work, fracturing an elbow and ankle. She returned to work on her doctor’s recommendation after he put her arm in a sling. She left work early on several days and took two days off the following week without informing her supervisor. The following Monday she was fired. She sued the hospital under the FMLA, and a federal court ruled against her. The Eleventh Circuit affirmed. Here, the employee did not have a “serious health condition” under the FMLA because her injury did not require her to miss three consecutive full calendar days of work. Even though the several partial days and two non-consecutive days she took off added up to more than three days away from work during a 10-day period, she was not protected by the FMLA. The regulations clearly require some fraction more than three consecutive calendar days to constitute the period of incapacity. And she did not meet that requirement. The termination was justified. Russell v. North Broward Hospital, 346 F.3d 1335 (11th Cir. 2003).
Woodman v. Miesel Sysco Food Service Co. - While unloading his truck, a driver experienced chest pains and, after another employee relieved him, drove himself to the hospital where he underwent an EKG. When no apparent heart damage was found, the driver was released under a “personal discharge plan” that warned he should not return to work until after a stress test was performed – 10 days later. He called several management employees to inform them he could not yet return to work. He forwarded the discharge plan to the company and passed the stress test. When he attempted to return to work, he was informed that he had been fired for violating the company’s collective bargaining provisions concerning absences. He sued under the FMLA, and a trial court awarded him over $59,000 along with a reinstatement order. The Michigan Court of Appeals affirmed. Here, the driver’s telephone notice regarding the reason he could not return to work was sufficient to trigger the protections of the FMLA. Also, he provided the discharge plan to the company within the 15-day period in the statute for requests for medical certification. Finally, even though he did not actually have a serious health condition under the FMLA, his absence qualified under the statute because a doctor concluded that an extended absence from work was needed following his emergency room visit. Woodman v. Miesel Sysco Food Service Co., 657 N.W.2d 122 (Mich. Ct. App. 2003).
Scamihorn v. General Truck Drivers - A California truck driver’s sister was murdered by her ex-husband. The truck driver moved to Reno temporarily to be with his father, who had fallen into a depression. He drove his father to counseling sessions and did household chores. While on leave, he agreed with the company’s HR manager that he would resign from his job and would be rehired if he returned to work within six months. When he sought reinstatement, the company cited union-related restrictions and refused to reinstate him with seniority. It did, however, give him a position as a probationary truck driver. He sued under the FMLA, and a federal court granted pretrial judgment to the company. The Ninth Circuit reversed, finding an issue of fact as to whether the leave of absence qualified as FMLA leave. Here, if the father had a “serious health condition” and if the truck driver cared for him within the meaning of the FMLA, then he should have been reinstated to his position with seniority. Scamihorn v. General Truck Drivers, 282 F.3d 1078 (9th Cir. 2002).
Miller v. AT&T Corp. - A West Virginia employee with a history of absenteeism was warned about her poor attendance. Subsequently, she came down with the flu and missed a week of work. She saw her doctor twice during the week and requested FMLA leave when she returned to work. Her employer denied her request and fired her for excessive absenteeism. When she sued under the FMLA, a federal court ruled in her favor. The Fourth Circuit affirmed, holding that an employee with the flu could be suffering from a “serious health condition” where the employee cannot work for at least three consecutive days and receives continuing treatment from her doctor. The court noted that “treatment” includes examinations and evaluations of the seriousness of the illness. Here, even though the employee’s second visit to the doctor was to evaluate her condition, this constituted continuing treatment for a serious health condition. Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001).
Notice Requirements Judicial Decisions
Brown v. Automotive Components Holdings - An assembly line worker at a Ford plant in Indiana requested leave for stress. Her doctor faxed a form to the plant’s clinic stating that she needed until August 28, then referred her to a psychiatrist, who could not see her until August 29. She asked her doctor to let the plant clinic know she needed more time off, but she did not notify the clinic herself. When the clinic didn’t hear from her, it sent her a “quit notice” via certified mail, which she waited a few days to pick up. After her termination, she sued under the FMLA but lost. A federal court and the Seventh Circuit ruled that she could be fired for violating the FMLA’s “two-day” rule, which required her to give notice of unforeseeable need for leave within two days. Although that rule has since been replaced by a rule requiring employees to comply with the employer’s usual and customary policy on notice of need for leave, the two-day rule applied here. And the employee failed to show that extraordinary circumstances prevented her from complying. Brown v. Automotive Components Holdings, LLC, 622 F.3d 685 (7th Cir. 2010).
Saenz v. Harlingen Medical Center - A Texas medical center employee with a seizure disorder had a history of FMLA-approved absences and unexcused absences. One day, her mother found her hallucinating at home and contacted her supervisor. She was told to take the employee to the emergency room. The employee was later transferred to a behavior center, where she was diagnosed with bipolar disorder. When she sought to obtain additional FMLA leave, she learned that she had been fired for failing to contact the medical center’s third-party administrator within two days of her release from the hospital. She sued. A federal court granted pretrial judgment to the medical center, but the Fifth Circuit reversed, finding issues of fact over whether the center’s strict notice policy should be set aside because her mother tried to comply with it by speaking with her supervisor. Saenz v. Harlingen Medical Center, LP, 613 F.3d 576 (5th Cir. 2010).
Scobey v. Nucor Steel-Arkansas - An Arkansas steel mill employee with two unexcused absences sought a day off for his ex-father-in-law’s funeral on the following Wednesday. He was told to swap with another employee on Sunday, but instead he called up on Sunday, intoxicated and emotional, and said he was “through” with the company. He then called his supervisor on Monday and claimed he’d had a nervous breakdown. But because he had previously been dishonest, his supervisor thought he was making an excuse not to come to work. He stayed away all week. The next week he called an HR manager and claimed an alcohol problem and depression. The manager referred him to the Employee Assistance Program, and he underwent treatment, after which he was demoted because of his unexcused absences. When he sued under the FMLA, he lost. A federal court and the Eighth Circuit ruled that his shifting explanations for why he couldn’t work did not provide sufficient notice of his need for FMLA leave. Scobey v. Nucor Steel-Arkansas, 580 F.3d 781 (8th Cir. 2009).
Sarnowski v. Air Brooke Limousine - A service manager for a New Jersey company had a chronic heart condition, which his employer knew about. About two weeks after he returned from quintuple bypass surgery, he received a written warning about his job performance. He later told a supervisor that his doctor had found more blockages, that he was going to have to undergo medical monitoring, and that he might need more surgery. A week later he was fired for performance-related reasons. When he sued under the FMLA, a federal court granted pretrial judgment to the company. However, the Third Circuit reversed, finding issues of fact that required a trial. Here, the employee’s statement to his supervisor was sufficient to provide notice of his need for FMLA leave. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398 (3d Cir. 2007).
Stevenson v. Hyre Electric - An Illinois employee with a previously unblemished record got dizzy and felt her neck muscles tighten when a stray dog entered the facility where she worked. She began yelling to her supervisor that “f––––– animals shouldn’t be in the workplace.” Two hours later she went home ill. She called in sick the next day, but the following day, she charged into the company president’s office and began screaming and cursing at him for allowing a dog to enter the facility. She then missed three more days, and when she returned to work, she found the contents of her desk moved to another room to accommodate her fear of animals. She called the police, believing she was being harassed, then went home early. She went to a doctor but did not provide written or oral notice of her need for FMLA leave. After she was fired, she sued. A federal court granted pretrial judgment to the employer, but the Seventh Circuit reversed, finding issues of fact that required a trial. Her unusual behavior may have provided the employer with constructive notice of her need for FMLA leave. Stevenson v. Hyre Electric, 505 F.3d 720 (7th Cir. 2007).
Rodriguez v. Smithfield Packing Co. - A Maryland employee missed two-and-a-half days of work because of illness. She saw a doctor and returned to work with medical reports diagnosing her with a possible peptic ulcer. She worked four days. On the fifth day she told her supervisor she was sick and had to leave early for a doctor’s appointment. She was absent for the next eight days, but failed to inform her superiors that she would be gone, instead telling three co-workers to inform her supervisor that she was sick. She was fired, then provided documentation of her absence, and was offered a lower-paying position. She turned it down, then sued under the FMLA. A federal court ruled against her, noting that her minimal notice to the employer did not satisfy the requirements of the FMLA. Rodriguez v. Smithfield Packing Co., 545 F.Supp.2d 508 (D. Md. 2008).
Willis v. Coca-Cola Enterprises - A Louisiana employee called her supervisor on a Monday to tell him she was sick. She also told him she was pregnant, but did not say that the sickness was related to pregnancy complications. When she called back on Tuesday, she was told to get a medical release. She told her supervisor she had a doctor’s appointment on Wednesday, meaning more than a week later. However, her supervisor thought she meant the next day. She had no further contact with her employer for 10 days. When she was fired for violating the “no call/no show” policy, she sued under the FMLA. A federal court and the Fifth Circuit ruled against her. She failed to give her supervisor enough information to put the employer on notice that she had a “serious health condition.” Willis v. Coca-Cola Enterprises, 445 F.3d 413 (5th Cir. 2006).
Phillips v. Quebecor World RAI - An attendance-challenged Wisconsin employee in danger of being fired left work early because she was sick. She submitted a form from the company’s health center stating that she should be off work for three days. Several months later, after more absences, she was fired. She was diagnosed with a head tumor and sued under the FMLA, claiming the three-day absence should not have been counted against her. A federal court and the Seventh Circuit ruled against her. The note from the health center did not inform the company that she had a serious health condition, and she did not tell the company she was taking prescribed antibiotics. Phillips v. Quebecor World RAI, Inc., 450 F.3d 308 (7th Cir. 2006).
Grosenick v. SmithKline Beecham Corp. - After learning that she needed surgery, a pharmaceutical sales rep in Minnesota sought and obtained FMLA leave. However, the company sent her confusing notices as to when the leave started. One notice put the start date at August 2; another put it at August 20. Nevertheless, the company gave her more than 12 weeks leave, ultimately filling her position with someone else and firing her six months later. When she sued under the FMLA, she lost. The Eighth Circuit noted that the ambiguities and contradictions in the company’s notices did not create an FMLA claim. Grosenick v. SmithKline Beecham Corp., 454 F.3d 832 (8th Cir. 2006).
Cruz v. Publix Super Markets, Inc- A Florida employee asked for two weeks off to assist her pregnant daughter in Colorado because her daughter’s husband had broken his collarbone. Even though she had already used her vacation time, the store manager granted her request. She asked the personnel office about FMLA leave, but did not assert that her daughter was suffering from any complications of pregnancy. The personnel office instructed her to obtain a doctor’s note, but the doctor’s note did not indicate there was any problem with the pregnancy either. Based on the note, the store manager denied her request for an additional two weeks’ leave. She stayed with her daughter for four weeks and was fired. When she sued under the FMLA, she lost. The Eleventh Circuit noted that she never gave the manager any indication that her daughter had a serious health condition, so the store had no duty to inquire further. Cruz v. Publix Super Markets, Inc., 428 F.3d 1379 (11th Cir. 2005).
Conoshenti v. Public Service Electric & Gas Co. - A union employee in New Jersey signed a last chance agreement after problems with absenteeism. Shortly thereafter, he got in a car accident. He was eligible for leave under the FMLA and requested such leave, but his employer did not provide him with the required notice of his entitlement to 12 weeks’ leave. He decided to have surgery to correct the shoulder problem from the accident and was out for more than 12 weeks. The employer fired him after his 12 weeks of leave expired, and he sued under the FMLA. A federal court granted pretrial judgment to the employer, but the Third Circuit reversed in part. Here, the employee was claiming that he was prejudiced by the lack of notice: specifically, he said he would have reconsidered the surgery if he knew he only had 12 weeks of leave. This issue required a trial. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135 (3d Cir. 2004).