B. Eligible Employees
Employees are eligible for FMLA coverage if they:

(1) are employed at a facility that has 50 or more employees within a 75 mile radius;

(2) have been employed by the employer for at least 12 months; and

(3) worked at least 1,250 hours during the 12 month period immediately preceding the request for leave.

The determination of whether an employee is covered by the FMLA is made on the date that leave is to commence.  Consequently, if an employee qualifies for coverage at the beginning of his or her leave and then subsequently loses coverage (for instance, because he or she cannot satisfy the 1,250 hour requirement), he or she is covered for the entire period of the leave, even, potentially, in intermittent leave situations.  See Barron v. Runyon, 11 F. Supp. 2d 676 (E.D. Va. 1998) (employee who sought intermittent leave under FMLA was only required to establish his eligibility at the time of his first intermittent absence).

1. The 12-Month Period of Employment Requirement
The 12-month period of employment need not be consecutive.  If an employee works 52 workweeks for the employer at any time prior to the commencement of the leave, he or she will be deemed to have satisfied the 12-month employment requirement.  In assessing the number of workweeks employed by an employee, an employee will be considered to have “worked” a workweek if the employer maintained him or her on the payroll for any part of a workweek during which other benefits or compensation were provided by the employer.  Wolke v. Dreadnought Marine, Inc., 954 F. Supp. 1133 (E.D. Va. 1997); see also Babcock v. BellSouth Advertising & Pub. Corp., 348 F.3d 73 (4th Cir. 2003) (period that employee was on STD and on unexcused leave of absence counted towards 12-month employment requirement); Ruder v. Maine Gen. Med. Center, 204 F. Supp. 2d 16 (D. Me. 2002) (time employee was on vacation counted towards 12-month requirement).  Moreover, periods that an employee works as a temporary employee generally count towards the 12-month employment requirement.  Salgado v. CDW Computer Centers, No. 97 C 1975, 1998 WL 60779 (N.D. Ill. Feb. 4, 1998); Miller v. Defiance Metal Prods., Inc., 989 F. Supp. 945 (N.D. Ohio 1997).

2. The 1,250 Hours of Work Requirement
The FMLA applies the compensable hours of work standard of the Fair Labor Standards Act (“FLSA”) in determining whether an employee has worked 1,250 hours.  Therefore, paid vacation, sick leave, holiday pay and other paid periods of leave generally do not count towards the 1,250 hour requirement.  The courts are divided on whether hours for which an employee is paid pursuant to a union grievance award counts toward the 1,250-hour threshold.  See Ricco v. Potter, 377 F.3d 599 (6th Cir. 2004) (“hours of service” requirement included one year period covered by arbitration award in favor of employee); Plumley v. Southern Container, Inc., 303 F.3d 364 (1st Cir. 2002) (six months of back pay paid to employee pursuant to arbitration award did not count towards hours requirement of FLMA).

If an employer fails to maintain adequate records of the number of hours worked by an employee, the DOL and courts may presume that the employee has satisfied the 1,250 hours of service requirement.  The employer may overcome this presumption by presenting evidence of the true number of hours worked by the employee.  Hours during which an employee is on leave are not counted in determining whether an employee has satisfied the 1,250-hour threshold.  Rockwell v. Mack Trucks, Inc., 8 F. Supp. 2d 499 (D.Md. 1998); Caruthers v. Proctor & Gamble Mfg. Co., 961 F. Supp. 1484 (D. Kan. 1997).

In Robinson-Scott v. Delta Airlines, Inc., 4 F. Supp. 2d 1183 (N.D. Ga. 1998), a court applied FLSA standards in determining whether an employee qualified for coverage under the FMLA.  In Robinson, a flight attendant with fibromyalgia alleged that Delta had violated the FMLA by terminating her for excessive absenteeism.  Delta contended that the plaintiff was not entitled to protection under the FMLA because she did not work a minimum of 1,250 hours during the twelve-month period preceding her suspension.  After examining the airline’s records, the court concluded that they did not accurately account for the hours that the plaintiff actually worked, and presumed that the employee worked 1,250 hours.  The airline overcame this presumption by showing the number of hours actually worked by the employee.  Based on this showing, the Court concluded that the employee was not qualified for coverage under the FMLA and granted summary judgment in favor of the employer.  See also Rockwell, 8 F. Supp. 2d 499 (because employee did not work 1,250 or more hours during the 12-month period preceding his leave under FLSA standards, employee did not qualify for FMLA leave).

3. The 50-Employee Requirement
In determining whether an employee is employed at a qualifying facility, the employee’s worksite is the site to which he or she reports or the site from which his or her work is assigned.  The 75-mile radius standard is measured by surface miles, using surface transportation, by the shortest route from the facility where the employee needing leave is employed.

4. Effect of Designation by Employer
The DOL and the courts are sharply divided on the issue of whether an employer is bound by a designation that an employee is covered by the FMLA.  The regulations provide that “[i]f the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee’s designation.”  However, two courts in the Fourth Circuit have concluded that the regulation is contrary to the clear statutory intent of the FMLA and therefore is invalid.  Seaman v. Downtown Partnership, Inc., 991 F. Supp. 751 (D. Md. 1998); Wolke, 954 F. Supp. 1133.
Back to top

---

III. FMLA-Qualifying Events

A. General Standards
Qualified employees are entitled to leave:

(1) for the birth or placement of a child for adoption or foster care with the employee;

(2) because a serious health condition of the employee prevents the employee from performing the essential functions of his or her position and requires continuing treatment or in-patient care; and

(3) to care for a spouse, parent or child with a serious health condition.

B. “Serious Health Condition” Defined

1. FMLA Definition
The FMLA defines a “serious health condition” as an illness, injury, or physical or mental impairment that involves:

(1) in-patient care in a hospital, hospice or residential medical facility, including any period of incapacity (i.e., inability to work, attend school, or perform other regular daily activities due to a serious health condition, treatment therefor, or recovery therefrom) or subsequent treatment in connection with the in-patient care; or

(2) continued treatment by a health care provider where there is:

(a) a period of incapacity of more than three consecutive calendar days that involves (i) treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or (ii) treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of a health care provider;

(b) any period of incapacity due to pregnancy or for prenatal care;

(c) any period of incapacity or treatment for such incapacity due to a chronic serious health condition;

(d) a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective and where the employee or family member is under the continuing supervision of a health care provider (e.g., Alzheimer’s disease, a severe stroke, or the terminal stages of a disease or illness); and

(e) any period of absence to receive multiple treatments (including any period of recovery) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as treatment for cancer (chemotherapy, radiation, or other treatment), severe arthritis (physical therapy) or kidney disease (dialysis).

Courts have applied strictly these standards and, where the condition at issue does not satisfy each of the regulatory requirements for a “serious health condition,” have declined to find FMLA coverage.  See Rhoads v. FDIC, 257 F.3d 373, 382 (4th Cir. 2001) (plaintiff who suffered from asthma and migrane headaches did not experience a period of incapacity requiring absence from work for more than three days); Oswalt v. Sara Lee Corp., 74 F.3d 91 (5th Cir. 1996) (food poisoning, which did not require that the employee undergo inpatient medical care or receive continuing treatment by a health care provider, did not constitute a “serious health condition”); Bauer v. Dayton-Walther Corp., 910 F. Supp. 306 (E.D. Ky. 1996) (flu-like symptoms and rectal bleeding did not rise to the level of “serious health condition” because the symptoms lasted no more than three days and plaintiff did not experience a chronic recurrence of symptoms), aff’d, 118 F.3d 1109 (6th Cir. 1997); Sheppard v. Diversified Foods & Seasonings Inc., 1996 WL 54440 (E.D. La. Feb. 8, 1996) (question of fact remained as to whether plaintiff’s condition of “keloids,” a congenital kin condition, constitutes a “serious health condition” and thus the possibility that the condition is ongoing in nature and requires continuing treatment precluded summary judgment); Hott v. VDO Yazaki Corp., 922 F. Supp. 1114 (W.D. Va. 1996) (although plaintiff alleged that she suffered from sinusitis and bronchitis for a lengthy period and had received continuing treatment as a result, court held that plaintiff did not have “serious health condition” because physician’s certification for stated that the condition could be expected to last only 7 to 10 days and plaintiff would be able to perform essential job functions during this time).

• Chronic Conditions

A “chronic serious health condition” is a condition that (i) requires periodic treatment by a health care provider or by a nurse or physician’s assistant under direct supervision of a health care provider; (ii) continues over an extended period of time (including recurring episodes of a single underlying condition); and (iii) may cause episodic rather than a continuing period of incapacity (for example, asthma, diabetes, epilepsy, or similar health conditions).  See generally Flanagan v. Keller Products, Inc., No. 00-542-M, 2002 WL 313138, at *7-8 (D.N.H. Feb. 25, 2002) (finding that plaintiff’s dental ailment did not constitute a “chronic serious health condition”); Price v. Marathon Cheese Corp., 119 F.3d 330, 334-35 (5th Cir.1997) (holding that plaintiff’s carpal tunnel syndrome did not constitute a chronic serious health condition); Cole v. Sisters of Charity of the Incarnate Word, 79 F. Supp.2d 668, 671-72 (E.D. Tex. 1999) (holding that plaintiff’s stress did not constitute a chronic serious health condition); Beal v. Rubbermaid Commercial Prods., Inc., 972 F. Supp. 1216, 1224-25 (S.D. Iowa 1997) (holding that although plaintiff’s eczema caused her to be incapacitated for more than one day and periodically forced her to leave work, it fell "far short of the sort of chronic problems entailing episodic periods of incapacity contemplated by the FMLA, such as diabetes and epilepsy."); Bauer v. Dayton-Walther Corp., 910 F. Supp. 306, 310 (E.D. Ky. 1996) (holding that plaintiff’s rectal bleeding "falls far short of the sort of chronic serious health problems such as diabetes and epilepsy within the purview of the FMLA.").

The regulations provide that "[a]bsences attributable to incapacity [due to a chronic condition] qualify for FMLA leave even though the employee . . . does not receive treatment from a health care provider during the absence . . .."  For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level.” 29 C.F.R. § 825.114(e); see also  Victorelli v. Shadyside Hosp., 128 F.3d 184 (3d Cir. 1997).  Absences due to these chronic conditions may still qualify for FMLA leave even though no health care provider has been consulted and no treatment has been received.  Id.  At least one court, however, has noted that “only in the case of incapacity due to pregnancy or a ‘chronic serious health condition’ may an employee conduct a self-assessment and seek FMLA-qualifying leave without being treated by a health care professional.”  Cavin v. Honda of Am. Mfg., No. C2-00-400, 2002 WL 484521 (S.D. Ohio Feb. 22, 2002), aff’d in part & rev’d in part, 346 F.3d 713 (6th Cir. 2003). 

• Incapacity

Incapacity is defined as an “inability to work, attend school or perform other regular daily activities due to serious health condition, treatment therefore, or recovery therefrom.”  29 C.F.R. § 825.114; Levine v. Children’s Museum of Indianapolis, No. IP00-0715-C-H-G, 2002 WL 1800254, at *6 (S.D. Ind. July 1, 2002).  The determination of incapacity is a threshold issue.  See Haefling v. United Parcel Serv., 169 F.3d 494, 499 (7th Cir. 1999); Marchisheck v. San Mateo County, 199 F.3d 1068, 1075 (9th Cir. 1999) (where there was no evidence of incapacity, plaintiff’s son’s psychological problems were not a chronic serious health condition); Levine, 2002 WL 1800254, at *6  (without evidence of incapacity, plaintiff’s FMLA claim fails as a matter of law because he cannot make a prima facie showing that he suffered from a “serious health condition”); Bond v. Abbott Laboratories, 7 F. Supp. 2d 967, 973 (N.D. Ohio 1998) (if no incapacity is shown, court need not consider whether plaintiff received continuing treatment). 

Courts have recognized that self-assessments and “after-the-fact” medical certifications are insufficient to establish incapacity.  See Austin v. Haacker, 76 F. Supp. 2d 1213, 1221 (D. Kan. 1999) (employee cannot rely on his own assessment of his health condition); Joslin v. Rockwell Int’l Corp., 8 F. Supp. 2d 1158 (N.D. Iowa 1998) (because employee’s condition had not been professionally assessed and health care provider did not determine that it was necessary for her to stay home for the three days on which she took leave, she was not entitled to FMLA leave); Bond, 7 F. Supp. 2d at 976 (rejecting FMLA claim where health care practitioner did not “instruct, recommend, or at least authorize” the plaintiff not to work during claimed period of incapacity); Olsen v. Ohio Edison Co., 979 F. Supp. 1159, 1166 (N.D. Ohio 1997) (plaintiff’s own testimony that she was unable to work was insufficient).

• Treatment

“Treatment” for purposes of the phrase “continuing treatment” includes examinations to determine if a serious health condition exists and evaluations of that condition.  29 C.F.R. § 825.114(b).  Treatment does not include routine physical examinations, eye examinations or dental examinations.  Id.; Marchisheck v. San Mateo County, 199 F.3d 1068, 1074-75 (9th Cir. 1999) (because session with counselor did not involve an “examination” or “evaluation,” it did not constitute treatment within FMLA definition).  A “regimen of continuing treatment” does not include activities that could be initiated without a visit to a health care professional, such as over-the-counter medications, drinking fluids and exercise.  See Levine, 2002 WL 1800254, at *7 (plaintiff could not satisfy treatment requirement of continuing treatment definition because he did not seek medical treatment after GERD flare-up).

• Substance Abuse

FMLA leave may be available to an employee if his or her substance abuse or the substance abuse of a spouse, parent or child qualifies as a serious health condition under these standards.  However, FMLA leave may only be taken for treatment for substance abuse by a health care provider, not for the abuse itself.  Moreover, an employer may take disciplinary action, up to and including discharge, if an employee violates its drug and alcohol policies, even if the employee is on FMLA leave at the time of the discipline or discharge.

6. Common Ailments
The FMLA regulations state that such ailments as the common cold, flu, ear aches, upset stomach, minor ulcers, headaches other than migraines, routine dental or orthodontic problems and periodontal disease ordinarily will not meet the definition of a “serious health condition.”  A 1996 Opinion issued by the DOL, however, has qualified these regulations by recognizing that, if these conditions satisfy the regulatory criteria for a serious health condition, a resulting absence would be protected by the FMLA.  DOL Op. FMLA-86 (Dec. 12, 1996); see also DOL Op. FMLA-87 (Dec. 12, 1996); Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001) (plaintiff was protected by the FMLA where her flu symptoms satisfied the regulatory criteria for a “serious health condition”).

C. “Caring for” a Family Member with a Serious Medical Condition
As noted above, qualifying employees are also entitled to leave to care for an immediate family member with a serious medical condition.  An “immediate family member” is defined to include a spouse, parent or child.  A “child” is defined to include biological, adopted, and foster children, a step-child, a legal ward and a child of a person standing “in loco parentis.  A child must either be under the age of 18 or over the age of 18 and incapable of self-care because of a mental or physical disability. 

The “care for” requirement has been interpreted to include activities broader than direct medical care and treatment for the ill or injured family member.  For instance, in Briones v. Genuine Parts Co., 2002 U.S. Dist. LEXIS 17552 (E.D. La. Sept. 17, 2002), the employee argued that he was entitled to leave to care for his healthy children while his young son was hospitalized with a serious medical condition.  The district court denied the employer’s motion for summary judgment and certified the issue for interlocutory appeal to the Fifth Circuit.  See also Scamihorn v. General Truck Drivers, 282 F.3d 1078 (9th Cir. 2002) (employees are entitled to leave in order to take family members to doctors’ appointments or to provide assistance and psychological comfort to ailing family members); Plumley v. Southern Container, Inc., No. 00-140-P-C, 2001 WL 1188469 (D. Me. Oct. 9, 2001) (employees may be protected under the FMLA when they visit ailing family members in the hospital); DOL Op. FMLA-94 (Feb. 27, 1998) (employee can take FMLA leave to attend medical conference to aid her in caring for her sick mother). 

The “care for” provision is not, however, without limitation.  For example, employees are not entitled to leave when their family members can care for themselves.  See Gilbert v. Star Building Sys., No. 95-1932-L, 1996 WL 931315 (W.D. Okla. Nov. 15, 1996).  In addition, the “care for” provision does not permit employees to take bereavement leave or to take time off merely to visit a family member in the hospital.  See Fitot v. Manhattan Woods Golf Enters., 270 F. Supp. 2d 401 (S.D.N.Y. 2003); Beal v. Rubbermaid Comm. Prod. Inc., 971 F. Supp. 1216 (S.D. Iowa 1997); Brown v. J.C. Penney Corp., 924 F. Supp. 1158 (S.D. Fla. 1996). 
Back to top

---

IV. Employer Notification Requirements

A. Posting
An employer must display the DOL’s FMLA poster in conspicuous locations where it can be seen by employees and applicants.  Employers are liable for a $100 civil monetary penalty for each willful violation of the posting requirement.

B. Employee Handbooks
Employers who are covered by the FMLA and who have written policies concerning employee benefits or leave rights, such as an employee handbook, must include in the policies information concerning FMLA entitlements and employee obligations under the FMLA.  Employers who do not have any written policies, manuals or handbooks describing employee benefits and leave provisions must provide written guidance to its employees about their rights and obligations under the FMLA.  The DOL has prepared an FMLA fact sheet that can be used for this purpose.

C. Written Notice of FMLA Rights
Employers also must give eligible employees who request FMLA leave written notice detailing their obligations under the FMLA and explaining the consequences of their failure to comply with those obligations.  The notice should include the following information:

• Notice to the employee that leave will be counted against the employee’s annual FMLA entitlement;
  
• Any medical certification requirements and the consequences of failing to provide certification;
  
• Whether the employer requires substitution of paid leave and the conditions of substituted leave;
  
• Any requirements concerning the payment of premiums to maintain health benefits;
  
• The possible consequences of failing to pay premiums as required;
  
• The circumstances under which health care coverage may lapse;
  
• Any requirement to present a fitness for duty medical certification in order to be restored to employment;
  
• The employee’s status as a key employee, if applicable, and the consequences of that designation;
  
• The employee’s right to restoration to the same or equivalent position upon return from leave;
  
• The employee’s potential liability for the payment of health insurance premiums during unpaid leave if the employee fails to return to work; and
  
• Whether the employer requires periodic reports of status and intent to return to work.

Usually, this notice must be given only once during each six-month period during which an employee gives notice of the need for FMLA leave.  The notice must be in writing and must be given as soon as practicable after the employee’s notice of the need for FMLA leave, usually within one to two days.  If the employer fails to provide the required information in its notice or fails to provide the notice, it may not take action against the employee for his or her failure to comply with the employee obligations set forth in the notice.  The DOL has issued a prototype notice that may be used by an employer for this purpose.

D. Failure to Provide Required Notices
The failure to post or provide required FMLA notices does not give rise to a private right of action.  Mullin v. Rochestger Manpower, Inc., 204 F. Supp. 2d 556 (W.D.N.Y. 2002).  However, if an employer fails to provide the required notices or to include in them the information that is required by the Act, it may be precluded from taking adverse action against an employee for failing to give timely notice or required certifications.  See Taylor v. Invacare Corp., 2003 U.S. App. LEXIS 10318 (6th Cir. 2003) (even though employee did not provide timely notice of need for FMLA-qualifying leave, employer could not count absence against employee under no-fault absenteeism program because it did not provide required notices); Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706 (2d Cir. 2001) (employer collaterally estopped from challenging employee’s eligibility because it failed to post required FMLA notices).
Back to top

---

V. Rights of Qualifying Employees for Covered Conditions

A.  Right to Leave

1. Employee Notification Requirements
An employee is required to give 30 days advance notice of the need for the FMLA leave, if practicable.  Although an employee is not required expressly to assert his or her “FMLA” rights or to request “FMLA” leave, he or she must, at a minimum, communicate facts to the employer that place it on notice that the requested leave is necessary receive treatment or provide care for a qualifying condition.  Moore v. United Int’l Investigation Servs., 209 F. Supp. 2d 611 (E.D. Va. 2002) (employee placed employer on notice of need for FMLA leave by telling supervisor that he needed time of “now and again” to care for his wife who suffered from emphysema and, later, terminal cancer); Bryant v. Delbar Prods., Inc., 18 F.Supp. 799 (M.D. Tenn. 1998) (employer had sufficient notice of FMLA-qualifying event where employee informed employer that she needed to take time off because her son was in the hospital and she provided her employer with a physician’s note indicating that her son had been hospitalized).

2. Medical Certifications
An employer may require an employee to provide medical certification from a health care provider to substantiate that the requested leave is due to a serious health condition of the employee or a qualifying family member.  The employer may request the following categories of information in the medical certification form:

(1) the date on which the serious medical condition commenced;

(2) the probable duration of the serious health condition;

(3) “appropriate medical facts” concerning the condition; and

(4) if the employee is requesting leave to care for a covered family member, facts establishing that the employee needs to take leave to care for the family member and the estimated period of time necessary to provide such care.

The DOL has established a medical certification form that identifies the categories of information that may be requested from a health care provider.  An employer is not allowed to request information from an employee concerning a serious medical condition beyond that required by the DOL’s certification form.  If an employee refuses to provide medical certification substantiating his or her request for leave, an employer may deny the employee’s request for FMLA leave if it has complied with the notice requirements discussed above.

• Second and Third Medical Opinions
  An employer may not request additional information from the employee’s health care provider if the employee submits a complete certification form.  However, with the employee’s permission, a health care provider representing the employer may contact the employee’s health care provider for clarification and authentication of a medical certification.   If the employer has reason to doubt the validity of the certification, the employer may seek a second medical opinion, at its own expense, from a health care provider of its own choice, other than a health care provider employed on a regular basis by the employer.
  
  If the first two opinions differ, the employer must request, at its own expense, a third medical opinion.  The third health care provider must be designated or approved jointly by the employer and the employee.  The third opinion is final and binding.  If the employee refuses to obtain or to cooperate in the process of obtaining a third medical opinion, the second opinion will be binding.  While the employer is seeking clarifying information or a second medical opinion, the employee is entitled to all FMLA rights and benefits.
  

• Recertifications
  While an employee is on FMLA leave, an employer may require the employee to provide periodic recertifications.  If the minimum duration of the incapacity identified in the original certification is more than 30 days, however, the employer generally may not request recertification until that period has expired, except for pregnancies and chronic or long-term serious health conditions.  DOL Op. FMLA-2004-2-A (May 25, 2004) (employer may request medical certification every 30 days for pregnancies and for chronic and permanent/long-term conditions of uncertain duration).  An employer may obtain more frequent recertifications if the circumstances described in the original certification change significantly or if the employer receives information that casts doubt on the authenticity of the certification.  An employer also may require employees to provide more frequent reports concerning their status and of their intent to return to work.

3. Length and Timing of Leave
Employees may take up to 12 workweeks of FMLA leave during any 12-month period.  A “workweek” is the number of hours that an employee ordinarily works during a week.  For part-time employees whose hours vary from week to week, the employer should compute a weekly hourly average based on the number of hours worked by the employee during the 12 weeks prior to the commencement of the leave.  DOL Op. FMLA-2002-1 (May 9, 2002). 

Employers are required to apply to all employees the same method for determining the applicable 12-month period.  Employers generally use a rolling 12-month period, which examines the 12-month period prior to the employee’s request for FMLA leave.  Employers, however, may also use a calendar year or other fixed year period for assessing FMLA leave.  However, if an employer fails to designate which method it will use to determine the 12-month period, employees may apply the method that they believe is most beneficial to them. Moreover, once an employer has selected a method, it must give 60-days notice of any change in its method and transition the change in a way that affords the greatest benefit to employees.

4. Intermittent Leave
An eligible employee is entitled to intermittent or reduced work leave when medically necessary to allow the employee to care for his or her own serious health condition or to care for a spouse, child or parent with a serious health condition.  However, the employer may require that the employee transfer temporary to an available alternative position with equivalent pay and benefits if the position would better accommodate the recurring periods of leave.  The employee, however, must be returned to the same or an equivalent position as the one that he or she held before the leave when he or she no longer needs the intermittent leave or reduced schedule.  An employer is not required to provide intermittent leave for the birth of a child or for the placement of a child through adoption or foster care.

The certification submitted by the employee for intermittent leave should indicate the frequency and duration of the intermittent leave.  Other than potentially a “self-certification” from the employee, an employer may not require additional documentation or certification for the intermittent leave described in the certification.  In situations where the need for intermittent leave cannot be predicted with precision and is taken on an “as needed” basis (e.g., back pain, migraine headaches), an employer cannot require additional certification for individual instances of leave, even though they are not specifically identified in the certification. 

However, an employer has potential options for curbing situations where it believes that intermittent leave is being abused:

• First, the employer should ensure that the certification requests details  relevant to issue of unscheduled intermittent leave, such as the frequency of leave, the anticipated length of the leave and the duration of the need for intermittent leave. 

• Second, the employer may be able to use a form that requires the employee to self-certify the need for individual instances of intermittent leave. 

• Third, the employer may seek a recertification of the intermittent leave where (1) the employee requests an extension of the leave beyond the period specified in the original certification; (2) the circumstances described in the original certification have "changed significantly" (e.g., the duration of the illness, the nature of the illness, complications); or (3) the employer receives information that casts doubt on the continuing validity of the certification. 

• Finally, if the employer becomes aware of credible, objective evidence that questions the employee’s need for the leave or use of it, the employer may seek recertification, request a second medical opinion, or conduct an investigation to determine whether the employee is engaged in fraudulent or improper conduct.

As with other forms of leave, an employer should designate intermittent leave within two days of the receipt of the medical certification.  For intermittent leave identified in the certification (e.g., leave to undergo dialysis every Tuesday and Thursday from 3:00 p.m. to 5:30 p.m.), it is not necessary to send a written designation to the employee each time that they use intermittent leave.  However, in situations, such as those discussed above, where the intermittent leave is unplanned, it is advisable to send a written designation to the employee designating the leave as FMLA qualifying each time that the employee uses intermittent leave.  This process will ensure that the FMLA leave is properly designated and that there is no confusion between the employee and employer concerning the exhaustion of leave.

5. Substitution of Paid Leave
The FMLA does not require an employer to pay an employee during his or her FMLA leave.  However, the availability of other forms of paid leave permitted by an employer’s policies may allow an employee to “stack” paid leave on top of unpaid FMLA leave and take more than 12-weeks of leave.  In order to avoid the stacking of unpaid FMLA leave and paid leave, an employer should specify in its FMLA policy that employees must use any accrued paid sick leave, personal days or vacation leave and that FMLA leave runs concurrently with the paid leave.

The FMLA does not prohibit an employer from requiring an employee to submit medical documentation beyond that required by the FMLA to receive paid sick leave benefits.  However, the employee’s failure or refusal to provide the required documentation cannot negatively impact his right to receive or be credited with FMLA leave.  DOL Op. FMLA-2004-3-A (Oct. 4, 2004).

6. Employer’s Obligation to Designate FMLA Leave
It is the employer’s obligation to designate whether leave taken by an employee qualifies for coverage under the FMLA and to give the employee notice of the designation.  The employer’s designation decision must be based solely on information provided by the employee or his or her spokesperson.  If the employee or spokesperson fails to provide information that is sufficient to make a determination, the employer should inquire further to determine whether the leave is potentially FMLA-qualifying. 

FMLA regulations provide that, once the employer has acquired knowledge that the requested leave is for an FMLA-qualifying reason, the employer must promptly (within two business days, absent extenuating circumstances) notify the employee that the leave is being designated as FMLA leave.  This notice may be oral or in writing.  However, if the notice is given orally, it must be confirmed in writing by the employee’s next pay day.  The written notice may be given in any form, including a notation on the employee’s pay stub.

If the event causing the request for leave is unexpected, unforeseen or the employer has insufficient information to make a determination as to whether it is FMLA-qualifying, the employee’s leave entitlement may be applied retroactively to the beginning of the leave.  According to the regulations, an employer may not designate leave as FMLA leave after the employee returns to work, except in two circumstances:

(1) If an employer learns from an employee returning from a work absence that the reason for the absence was a qualifying event for purposes of the FMLA, it may count the absence against the employee’s entitlement.  The retroactive designation must be made within two business days of the employee’s return to work.

(2) If an employer is delayed in confirming that the reason for the leave is a qualifying event, the requested medical certification is delayed, or second or third medical opinions have been requested, a retroactive designation may be made.

A number of federal courts had rejected this regulation and allowed employers to retroactively designate FMLA leave.  In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), the United States Supreme Court resolved this conflict and ruled that the regulation was invalid.  The Court found that the regulation operated as a penalty that was “unconnected to any prejudice the employee might have suffered from the employer’s lapse” in giving notice that the leave would be counted against their FMLA leave.  Furthermore, the Court stated that the “challenged regulation is invalid because it alters the FMLA’s cause of action in a fundamental way: [i]t relieves employees of the burden of proving any real impairment of their rights and resulting prejudice.”  Moreover, the Court ruled that, to the extent the penalty provided by the challenged regulation has no substantial relation to the harm suffered by an employee, “it amends the FMLA’s most fundamental substantive guarantee – the employee’s entitlement to ‘a total of 12 workweeks of leave during any 12-month period.’” 

7. Impact of Designation Beyond 12-Week Entitlement           
DOL has taken the position that, if an employer erroneously designates leave as FMLA qualifying that does not technically qualify for coverage or that extends beyond the employee’s 12-week entitlement, the employer is bound by that designation.  Some courts have reached the same conclusion under principles of equitable estoppel.  For instance, in Duty v. Norton-Alcoa Proppants, 293 F.3d 481 (8th Cir. 2002), the employer sent a letter to the plaintiff notifying him that his entire 34-week leave qualified under the FMLA.  The court concluded that, because the letter promised the employee FMLA leave to a specified date and the employee relied on that promise to his detriment, the employer was equitably estopped from contesting the employee’s eligibility for FMLA leave.  See also Thomas v. Pearle Vision, Inc., 251 F.3d 1132 (7th Cir. 2001) (statement in SPD that granted FMLA-type benefits to employees who did not qualify for FLMA coverage created enforceable contract rights); Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 724-25 (2d Cir. 2001) (employer estopped from challenging employee’s FMLA eligibility where employee justifiably relied on employer’s representations concerning availability of FMLA leave); Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir. 2000) (employer can be equitably estopped from contesting employee’s eligibility for FMLA leave where employer’s words or conduct have caused employee to rely on the availability of leave).

B. Restoration to Equivalent Position

1. Equivalent Position Requirement
When an employee returns from FMLA leave, the employer is required to return the employee to the same or equivalent position.  An “equivalent position” is one that is virtually identical to the position the employee held before taking FMLA leave.  The position must have the same pay, benefits, working conditions, privileges, perquisites and status.  The position also must involve the same or substantially similar duties and responsibilities and must entail substantially equivalent skills, effort, responsibility and authority.

To satisfy the equivalent pay requirement, the employee must receive any unconditional pay increases that occurred during the leave, such as cost of living increases.  However, employers are not required to provide to the returning employee pay increases based on seniority or work performed, unless it is the employer’s policy to provide such increases to employees on unpaid leave.  The employer also must provide to the returning employee comparable overtime and comparable rights to participate in bonus, profit-sharing and other payment plans.

The regulations adopted pursuant to the FMLA specifically address the payment of bonuses impacted by FMLA leave.  The regulation provides that:

Many employers pay bonuses in different forms to employees for job-related performance such as for perfect attendance, safety . . . and exceeding production goals.  Bonuses for perfect attendance and safety do not require performance by the employee but rather contemplate the absence of occurrences.  To the extent an employee who takes FMLA leave had met all the requirements for . . . these bonuses before FMLA leave began, the employee is entitled to continue this entitlement upon return from FMLA leave, that is, the employee may not be disqualified for the bonus(es) for the taking of FMLA leave.

In construing this regulation, courts have generally required employers to pay bonuses to employees returning from FMLA leave where the bonus is based on the non-occurrence of an event (e.g., a “perfect attendance” bonus or “full stay” bonus), as opposed to the satisfaction of production goals or performance standards.  See, e.g., Dierlam v. Wesley Jessen Corp., 2002 U.S. Dist. LEXIS 17964 (N.D. Ill. Sept. 23, 2002) (granting summary judgment in favor of employee on FMLA claim where employee established that employer reduced “full stay” bonus to reflect her three months of FMLA leave).  Employees are also entitled to any unpaid commissions earned during FMLA leave.  See Estes v. Meridian One Corp., No. 99-2662, 2001 WL 285076 (4th Cir. Mar. 23, 2001) (holding that the evidence supported the jury’s finding that plaintiff was entitled to unpaid commissions earned while on FMLA leave).

2. Fitness for Duty Certifications
As a condition to reinstating an employee who took FMLA leave for a serious health condition, the employer may require the employee to provide a certification from his or her health care provider that the employee is fit to return to work.  An employer may only require the employee to provide a simple statement of the employee’s ability to return to work.  Certification may only be required if the employer has a uniformly applied policy that requires all similarly situated employees in the same circumstances (e.g., all employees who have a similar duration of absence or nature of illness) to provide fitness for duty certifications.  Fitness for duty certifications may not be required from employees returning from intermittent leave.

The employer must notify the employee at the beginning of his or her leave if a fitness for duty certification will be required.  An employer may require the employee to bear the costs of the certification.  An employer does not have the right to seek a second or third medical opinion regarding a certification.  If the employer provided the required notice of the certification requirement and the employee refuses to provide a required certification, the employee may be denied reinstatement and terminated.

These provisions are more restrictive than the fitness-for-duty certification provisions of the Americans with Disabilities Act (“ADA”).  In Porter v. United States Alumoweld Co., 125 F.3d 243 (4th Cir. 1997), the Fourth Circuit addressed potential conflict between these two provisions.  In Porter, the employee alleged that his employer violated the FMLA by requiring him to undergo a fitness-for-duty examination that required more than a “simple statement of an employee’s ability to return to work.”  The Fourth Circuit held that FMLA certification for fitness-for-duty is distinct from an ADA-prescribed examination and that the FMLA’s provisions should not be read to preclude an employer from requiring the more extensive medical information under the ADA.

3. Limitations on an Employer’s Reinstatement Obligation

a. Employee Is Not Entitled to a Better Position
Employers, however, do not have an obligation to place returning employees in a better position than they would have been in if they had not taken the leave.  The FMLA provides that employees are not entitled to “any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.”  For instance, the FMLA does not shield an employee from disciplinary action unrelated to the leave.  See, e.g., Hubbard v. Blue Cross Blue Shield, 1 F. Supp. 2d 867 (N.D. Ill. 1998) (upholding termination of employee who failed to satisfy terms of corrective action plan prior to taking FMLA leave); McCown v. UOP, Inc., 1995 WL 519818 (N.D. Ill. Aug. 30, 1995) (upholding termination of employee on intermittent FMLA leave for arriving late at work 15 days, missing four and one-half days, and making excessive personal telephone calls).

b. Employee Would Have Been Terminated if He Had Not Been on Leave                       
In addition, an employer does not have an obligation to reinstate an employee if it can show that the employee would have been terminated in connection with a reduction in force, shift elimination or facility closing if he or she had not been on leave.  29 U.S.C. § 2614(a)(3)(B) (the reinstatement obligation “shall [not] be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been titled had the employee not taken the leave”); see also Phelan v. City of Chicago, 347 F.3d 679, 683-84 (7th Cir. 2003) (regardless of when the employer made the decision, there was no violation of the FMLA because employee conceded that he was terminated for poor performance); Pharakhone v. Nissan North Am., 324 F.3d 405, 407-08 (6th Cir. 2003) (termination did not violate because employee was fired for violating company policy while on leave, not because he took leave); Kohls v. Beverly Enterprises Wisconsin, Inc., 259 F.3d 799, 806 (7th Cir. 2001) (termination did not violate the FMLA because employer would have fired employee for her mismanagement and mishandling of funds even if she had not taken leave); Bearley v. Friendly Ice Cream, 322 F. Supp. 2d 563, 571-72 (M.D. Pa. 2004) (employer entitled to summary judgment on employee’s FMLA claim where evidence established that employee’s position was going to be eliminated regardless of whether employee took FMLA leave); Ahmarani v. Sieling & Jones, Inc., 211 F. Supp. 2d 658 (D. Md. 2002) (termination did not violate FMLA where employer made the decision to terminate the employee based on poor performance before he requested FMLA leave); Leary v. Hobet Mining, Inc., 981 F. Supp. 452 (S.D.W. Va. 1997) (employer could terminate employee on maternity leave in connection with a reduction in force); Hopkins v. Electronic Data Systems Corp., 1997 WL 853506 (E.D. Mich. Sept. 30, 1997) (employer did not violate FMLA by terminating employee on FMLA leave because it made the decision to eliminate the employee’s position independent of the employee’s leave); Patterson v. Alltel Information Servs., Inc., 919 F. Supp. 500 (D. Me. 1996) (termination as part of a company-wide reduction in force was not related to FMLA leave).

c. Employee Is Unable To Perform the Essential Functions of the Job                                   
Employees also are not entitled to reinstatement if they are unable to perform the essential functions of their job at the end of their FMLA leave, take more than 12 weeks of leave, or fail to return to work at the end of their FMLA leave.  Brown v. J.C. Penney, 924 F. Supp. 1158 (S.D. Fla. 1996) (employee who remained on leave for one month after he was no longer needed to care for his seriously ill father was not entitled to reinstatement); Haggard v. Farmers Ins. Exchange, 1996 WL 146048 (D. Ore. Mar. 26, 1996) (employee not entitled to reinstatement after taking 14 weeks of leave in connection with pregnancy and birth of child).  In determining whether an employee is able to perform the essential functions of his job at the end of the 12-week period, some courts have not applied the stringent standards adopted under the ADA.  Courts instead focus on whether the employee is able to perform the essential functions of his current position in assessing an employer’s obligation to provide job restoration.  See, e.g., Duty v. Norton-Alcoa Proppants, 293 F.3d 481 (8th Cir. 2002) (sufficient evidence existed to support jury’s determination that employee was able to perform essential functions of his position with lifting restriction); Stekloff v. St. John’s Mercy Health Sys., 218 F.3d 858, 861 (8th Cir. 2000) (because “the declared purposes of the FMLA and its legislative history” are concerned with job security, the determination of whether an employee is able to perform the essential functions of his job for FMLA purposes focuses “on [his] ability to perform those functions in [his] current environment”).

d. The “Key Employee” Exception
Employers also may deny job reinstatement to “key employees” in order to prevent “substantial and grievous economic injury” to the operations of the employer.  Key employees are salaried employees who are among the highest paid ten percent of all of the employees employed by the employer within 75 miles of the employee’s workplace.  There is no precise test for determining the level of economic hardship or injury to the employer that is necessary to deny reinstatement.  The DOL has determined that an employer may deny reinstatement where (1) it would threaten the economic viability of the employer’s operation; and (2) it would cause substantial long-term economic injury.  The regulations recognize that the FMLA’s substantial and grievous economic injury standard is different from and more stringent than the ADA’s undue hardship standard.

C. Continuation of Benefits
During FMLA leave, the employer must maintain the employee’s coverage under any group health plan on the same conditions that would have been provided if the employee had been continuously employed during the entire leave period.  Plan changes that would have affected the employee’s coverage if he or she had not been on leave apply to employees on FMLA leave.  Any share of group health premiums that were paid by the employee before FMLA leave must continue to be paid by the employee during the leave.  In the absence of an established employer policy providing a longer grace period, an employer’s obligation to maintain health insurance coverage ceases under the FMLA if an employee is 30 or more days late making a premium payment.  The employer must provide at least 15-days written notice the employee of the cancellation of coverage for non-payment.

At the end of an employee’s FMLA leave, the employer has a duty to restore the employee to the level of coverage and benefits under its group health plan equivalent to those that the employee would have had if leave had not been taken.  This obligation applies even if the employee failed to make required premium payments during the leave or if the employee elected not to continue his or her coverage during the leave period.  The employee cannot be required to meet any qualification requirements imposed by the plan, including any waiting period or medical examination as a condition of reinstatement.

If an employee does not return to work after exhausting his or her FMLA leave entitlement, an employer may recover any health plan premiums paid by it during unpaid FMLA leave.  However, an employer may not recover the costs of premiums if the employee does not return to work for one of the following reasons:

(1) the continuation, recurrence, or onset of a serious health condition of the employee or the employee’s family member which would otherwise qualify the employee for FMLA leave;

(2) circumstances beyond the employee’s control (e.g., caring for a relative not otherwise covered by FMLA who has a serious health condition, the employee is laid off while on leave, the employee is a key employee who was not reinstated); or

(3) the employee is on temporary disability or workers’ compensation leave.

D. Interference with Rights Guaranteed by FMLA
Employers are strictly prohibited from interfering with, restraining or denying the exercise or attempted exercise of any rights under the FMLA.  The regulations provide that employers may not discourage employees from using FMLA leave or engage in manipulation to circumvent the FMLA, such as moving employees between facilities in order to avoid the 50-employee threshold.  The FMLA also prohibits employer from counting absences during an FMLA leave against an employee for disciplinary purposes under a “no fault” or other absenteeism control policy.

E. Fraud in Connection with FMLA Leave Requests
An issue that frequently arises is how an employer should respond when it believes that an employee is engaging in FMLA leave abuse.  The regulations recognize that “[a]n employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA’s job restoration or maintenance of health benefits provisions.”  See 29 C.F.R. § 825.312(g).  A number of courts have upheld an employee’s termination where the employee did not use the FMLA leave for its “intended” purpose, in violation of the employer’s policy.  See, e.g., Lucy v. Jones, No. 03 C 8688, 2004 WL 1745754 (N.D. Ill. Aug. 2, 2004) (employer’s refusal to reinstate plaintiff upheld where plaintiff misused his FMLA leave to perform other work); LeBoeuf v. New York Univ. Med. Ctr., 2000 U.S. Dist. Lexis 18263 (S.D.N.Y. Dec. 20, 2000) (upholding employee’s termination for fraudulent use of leave where the employee, while on FMLA leave, attended to personal matters, such as attending his child’s christening and a traffic court hearing, and paying bills); see also Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672 (7th Cir. 1997) (finding no violation of FMLA where employer refused to reinstate employee who had not used the leave for its intended purpose). 

For example, in Stonum v. U.S. Airways, Inc., 83 F. Supp. 2d 894 (S.D. Ohio 1999), the court upheld the employee’s termination for abuse of FMLA leave where she had used the leave that she requested to care for her elderly mother to run personal errands.  The plaintiff, who shared responsibility for caring for her mother with her sister, denied that she abused the leave.  U.S. Airways hired a private investigator to investigate the abuse, and, after confronting the plaintiff with the investigator’s findings and providing her an opportunity to explain her actions, terminated her.  The court, noting that the “presence or absence of [plaintiff’s] sister has no impact on the reasonableness of the Defendant’s belief” that she abused the leave, upheld the termination, finding that it violated U.S. Airways’ FMLA policy.  See 83 F. Supp. 2d at 901 n.8.

Courts have also upheld employee terminations when the employee submits false claims or medical documentation.  See, e.g., Loomis v. Honda of Am. Mfg., Inc., No. C2-01-606, 2003 WL 133264 (S.D. Ohio Jan. 6, 2003) (plaintiff not protected under the FMLA because she submitted false medical documentation); Chalimoniuk v. Interstate Brands Corp., 172 F. Supp. 2d 1055, 1058 (S.D. Ind. 2001) (recognizing that if employer presents evidence that plaintiff knowingly submitted false medical information relating to his medical leave, plaintiff will not be protected under the FMLA); Johnson v. Olin Corp., 2000 WL 1468480 (S.D. Ind. Sept. 29, 2000) (employer honestly believed that employee filed a fraudulent disability claim because it videotaped the employee performing various physical activities that contradicted his alleged disability claim).

As these cases recognize, before terminating an employee or denying leave for fraud or other misconduct in connection with FMLA leave, an employer should conduct a thorough investigation of the allegations of fraud, in a manner consistent with the investigation of other employment-related issues.  Such investigations generally should include interviews of the employee, his managers and/or supervisors, his co-workers, and third parties with knowledge, if necessary.  The associate should be given an opportunity to respond to the allegations.  After it completes its investigation, the employer should analyze the information uncovered in the investigation and determine whether the employee’s actions warrant discipline or a change in the status of his leave.  In doing so, however, the employer should make certain that the discipline is consistent with that received by employees who have committed non-FMLA leave violations. 
Back to top

---

VI. Recordkeeping Requirements
Covered employers are required to make and maintain records pertaining to their obligations under the FMLA in accordance with the recordkeeping requirements of the FLSA and regulations issued under the FMLA.  Employers must maintain required records for at least three years and make them available upon request for inspection, copying and transcription by the DOL.  Covered employers must maintain records that disclose the following information:

• Basic payroll and identifying employee data, including name, address, and occupation, rate or basis of pay and terms of compensation, daily and weekly hours worked per pay period, additions to or deductions from wages and total compensation paid;
  
• Dates and hours of FMLA leave taken by FMLA-eligible employees;
  
• Copies of all written notices provided by employees to the employer concerning their FMLA leave and notices provided by the employer to the employee.  Copies of these notices may be maintained in employees’ personnel files;
  
• All documents describing employee benefits or employer policies and practices about taking paid and unpaid leave;
  
• Premium payments for employee benefits; and
  
• Records of any dispute between the employer and an eligible employee about the designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

Records and documents relating to medical certifications and recertifications and medical histories of employees or their family members created for purposes of the FMLA must be maintained as confidential medical records in files separate from employees’ personnel files.  If the ADA also applies, the records must be maintained in conformance with ADA confidentiality requirements, except that:

(1) supervisors and managers may be informed about necessary restrictions on the work or duties of the employee and necessary accommodations;

(2) first aid and safety personnel may be informed (when appropriate) if the employee’s physical or medical condition might require emergency treatment; and

(3) government officials investigating compliance with the FMLA may be provided with relevant information upon request.
Back to top

---

VII.  Ensuring Compliance with the FMLA
The FMLA and its implementing regulations contain a number of traps for unwary employers.  It is critical that employers adopt comprehensive policies and procedures to ensure that they comply with the FMLA’s detailed and complicated provisions.  There are four basic steps that employers should undertake in developing and implementing its FMLA policies and procedures:

(1) Audit Your Company’s Current FMLA Policies and Procedures. 
The first step in establishing comprehensive FMLA policies is to audit your company’s existing policies and procedures.  Examine all existing FMLA policies, notices and forms to determine whether they comply with FMLA regulations.  Determine the procedures that are used by managers and the HR department when an employee requests leave.  Do these procedures ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate individual or department?  When potentially qualifying leave is requested, does your company provide notice to the employee within two business days?  Does your company provide medical certification forms to employees?  Is your company properly designating FMLA leave and providing timely notice to employees of the designation?  Is your company requiring recertifications and status reports from employees on leave?  Does your company require fitness-for-duty certifications from employees returning from leave for a serious medical condition? 

It is critical as you undertake this audit to identify all potential problem areas and areas of vulnerability.  Almost every company has unwittingly violated the FMLA in one way or another.  The key is to identify the violations and to determine why they are occurring.  For instance, your supervisors may not be providing notice and medical certification documentation to employees when they request leave that potentially qualifies for FMLA coverage.  To address this problem, a company should consider (1)training supervisors concerning the types of leave that are covered by the FMLA; (2)developing forms to be provided to employees by supervisors whenever they request leave for a condition that is potentially covered by the FMLA; (3) developing clear time lines for the provision of notice; and (4) designating an employee to oversee the company’s compliance with notification, medical certification and designation requirements.

(2) Establish Written FMLA Policies.  After undertaking an audit of your company’s existing policies and procedures, you should develop written policies that address each of the issues uncovered during the audit process.  At a minimum, these policies should address the following issues:

• A statement of eligibility for FMLA leave.
  
• A statement as to how the employer will measure the leave available to an employee (i.e., on a rolling 12-month basis or otherwise).
  
• A statement as to how the employer will address situations where both spouses are employed by the company (i.e., will the employer enforce the 12-week combined total for the birth and adoption of children).
  
• The criteria that will be used by the employer in determining the availability of intermittent or reduced leave in the case of childbirth or child placement.
  
• A description of the circumstances under which recertifications of serious medical conditions will be required and the requirements for status reports.
  
• A description of the circumstances under which fitness-for-duty certifications will be required upon return to work.
  
• A description of the circumstances under which the employer will require the concurrent exhaustion of paid leave and unpaid FMLA leave.
  
• How the employer will handle employee contributions to health insurance and other benefit premiums.
  
• Any additional rights to medical or family leave afforded by state or local laws.
  
• A description of the grounds for denying job restoration or leave, including the company’s policies concerning “key employees.”
  
• A statement that nothing in the policy is intended to change the employee’s “at will” status.

(3) Develop Procedures for Ensuring Compliance with the FMLA Policies. 
In addition to developing written policies that address the FMLA, employers also should establish step-by-step written procedures for ensuring that its managers comply with those policies.  The procedures should clearly identify which employees are responsible for (1) receiving requests for leave; (2) determining whether the requested leave is potentially covered by the FMLA; (3) providing notices and medical certification forms to employees; (4) reviewing medical certification forms to determine whether they are complete and requesting second and third medical opinions; (5) designating leave as FMLA leave and notifying employees of the designation; (6) receiving status reports; (7)requesting periodic recertifications; (8) requesting fitness-for-duty certifications; (9)determining reinstatement obligations and making reinstatement decisions; and (10)monitoring employee’s use of FMLA leave.  The procedures should also identify the forms and policies that are applicable at each stage of this process.

(4) Train Managers Concerning Policies and Procedures and Audit Compliance.  Once these policies and procedures are developed, each of the managers who will be responsible for the implementation of the company’s FMLA policies and procedures should be provided with thorough training concerning the policies and their role in the implementation of the procedures.  After the policies and procedures are implemented, an employee or group of employees should periodically review FMLA requests to determine whether they were processed and resolved correctly.  Adjustments in the policies and procedures may be necessary to respond to problems identified during these post-implementation audits.

See also Sanghvi v. Frendel, 2000 WL 1804506, *2 (2d Cir. 2000) (employee’s request for leave to “visit his father, as his mother recently had died” was inadequate notice that the plaintiff was seeking leave for an FMLA-qualifying reason); Gay v. Gilman Paper Co., 125 F.3d 1432 (11th Cir. 1997) (“when notice of a possible serious medical condition is deliberately withheld and false information is given, it cannot be said that an employee has been terminated in violation of the Act”); Hauge v. Equistar Chemical Co., 2002 WL 1968390, *3 (N.D. Ill. Aug. 26, 2002) (employee who only told his supervisor he was “in pain from his tailbone,” and did not provide further information before he left work for his doctor’s appointment failed to place employer on notice of need for FMLA leave); McCarron v. British Telecom, 2002 WL 1832843, *5 (E.D. Pa. Aug. 7, 2002) (employer did not violate the FMLA when it refused to grant leave to and ultimately discharged employee whose only notification to employer was a voicemail message stating that he needed to leave to remedy “family problem”); Miller v. Venator Group, Inc., 2000 WL 648186, **3-4 (S.D.N.Y. May 18, 2000) (employer did not violate FMLA when it discharged employee who had communicated only that she was taking leave for “eye problems”).

If the employee’s doctor provides clarifying information that is inconsistent with the certification and would result in the denial of coverage, the employer should (1) document the information provided by the doctor; and (2) provide the employee with an opportunity to explain or counter the additional information provided by the doctor.  See Lara v. Central Grocers Cooperative, 2002 WL 31006132 (N.D. Ill. Sept. 5, 2002) (employer violated FMLA by relying on clarifying information provided by doctor to deny FMLA leave where (1) the information came secondhand from the plaintiff’s supervisor and was contrary to the doctor’s written note; (2) the doctor did not recall telling the supervisor the disqualifying information; and (3) there was no evidence that the employee had been made aware of the information or had been given an opportunity to counter it).

An employer must reimburse the employee or family member of any expenses incurred in obtaining second and third opinions.  The employer may not require the employee or family member to travel outside normal commuting distance to obtain second and third opinions, except in extraordinary circumstances.

Presented by:
Connie N. Bertram, Esq.
Winston & Strawn LLP
1700 K Street, N.W.
Washington, D.C. 20006
(202) 282-5847
cbertram@winston.com

Back to top

Reprinted by permission of Ms. Bertram