Family and Medical Leave Act of 1993 Flashcards
What is the purpose of the FMLA?
The FMLA entitles eligible employees of covered employers to unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to 12 workweeks of leave in a 12-month period for, among other things, a serious health condition that renders the employee unable to perform the functions of his or her job. 29 U.S.C. § 2612(a)(1)(D); 29 C.F.R. § 825.112(a)(4). An employer may request medical certification from a health care provider concerning the serious health condition that is the basis for the FMLA leave request. 29 U.S.C. § 2613; 29 C.F.R. § 825.305. When requested, medical certification is a basic requirement for FMLA-qualifying leave for a serious health condition, and the employee is responsible for providing such certification to his or her employer. WHD Opinion Letter FMLA2005-2-A, 2005 WL 3401779 (Sept. 14, 2005).
How many causes of Action are there under the FMLA?
What are the defenses?
What damages are available?
Is an employee entitled to have benefits incur while she is on FMLA?
-Except Health Insurance, benefits are limited to employer policy. Otherwise not entitled.
The FMLA does not, however, entitle an employee to superior benefits or position simply because he or she took FMLA leave. Cf., e.g., 29 C.F.R. § 825.214 (stating, with respect to reinstatement, that “an employee is entitled … 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”). Likewise, an employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave.” 29 C.F.R. § 825.215(d)(2); see also WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999). An employee is also not entitled to additional benefits or payments that are contingent on achieving a specified goal that the employee was unable to achieve because he or she took FMLA leave. 29 C.F.R. § 825.215(d)(5); see also Preamble to the Final Rule, 73 Fed. Reg. 67934, 67985 (Nov. 17, 2008). An employee’s entitlement to benefits (other than group health benefits) is “determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).” 29 C.F.R. § 825.209(h); see also 29 C.F.R. § 825.215(d)(1); WHD Opinion Letter FMLA-56, 1995 WL 1036727, *1 (Mar. 28, 1995) (“If, for example, an employee on leave without pay would otherwise be entitled to a particular benefit, that same benefit would be required to be provided to an employee on unpaid FMLA
Fact Scenario: Employer removes abseenteeism points off of employee’s record if they only get a certain number in a 12 month period. Employee wants to count FMLA towards that time, but does the Employer have to do that?
Removal of absenteeism points is a reward for working and therefore an employment benefit under the FMLA. Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 750-51 (7th Cir. 2010); WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999). As you describe in your letter, the number of accrued points remains effectively frozen during FMLA leave under your employer’s attendance policy. An employee neither loses a benefit that accrued prior to taking the leave nor accrues any additional benefit to which he or she would not otherwise be entitled. WHD’s longstanding position is that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment. WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999) (stating that the FMLA would permit an employer to “neither count the FMLA leave period towards an attendance control policy for potential termination, nor credit the unpaid FMLA leave towards the recordable time for dropping such points,” as long as the employer treated other equivalent types of leave in the same manner). If the employer, however, counts equivalent types of leave as “active service” under the no-fault attendance policy—meaning the employer counts such leave toward the twelve months necessary to remove points—then the employer may be unlawfully discriminating against employees who take FMLA leave. 29 C.F.R. § 825.220(c) (requiring that employees who take FMLA leave accrue the same benefits as employees who take equivalent non-FMLA leave). The 3 information you provided did not suggest that the employer treats equivalent types of leave as “active service,” so we have no indication that the above-described policy violates the FMLA.
Employer Question: You inquire whether an employee who donates an organ can qualify for FMLA leave, even when the donor is in good health before the donation and chooses to donate the organ solely to improve someone else’s health. You also inquire whether an organ donor can use FMLA leave for post-operative treatment. You note in your letter than organ-donation surgery typically requires an overnight stay in a hospital.
An organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves either “inpatient care” under § 825.114 or “continuing treatment” under § 825.115. Thus, as relevant to your letter, an organ donation would qualify as a serious medical condition whenever it results in an overnight stay in a hospital. Of course, that is not the only means for organ donation to involve “inpatient care” or “continuing treatment.” Organ-donation surgery, however, commonly requires overnight hospitalization, as you note in your letter, and that alone suffices for the surgery and the postsurgery recovery to qualify as a serious health condition.
The FMLA defines “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves” either “inpatient care in a hospital, hospice, or residential medical care facility” or “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). Implementing regulations define “inpatient care” as “an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity… or any subsequent treatment in connection with such inpatient care.” 29 C.F.R. § 825.114. The regulations also specify that “continuing treatment” includes “incapacity and treatment,” “chronic conditions,” 1 See also United Network for Organ Sharing (UNOS), Recovery, https://transplantliving.org/living-donation/beinga-living-donor/recovery/ (“Donors usually stay in the hospital for four to seven days after surgery.”). 2 “permanent or long-term conditions,” and “conditions requiring multiple treatments.” 29 C.F.R. § 825.115. For all conditions, “incapacity” means “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom,” and “treatment” includes “examinations to determine if a serious health condition exists and evaluations of the condition.” 29 C.F.R. § 825.113(b), (c). An employee is incapacitated if he or she is “unable to work at all or is unable to perform any one of the essential functions of the employee’s position,” including when the employee “must be absent from work to receive medical treatment.” 29 C.F.R. §§ 825.113(b), .123(a).
This letter responds to your request for an opinion on whether an employee may take leave under the Family and Medical Leave Act (FMLA) to attend a Committee on Special Education (CSE) meeting to discuss the Individualized Education Program (IEP) of the employee’s son or daughter.
Related Facts: You represent that your two children have qualifying serious health conditions under the FMLA. 2 You state that your wife has received a certification from your children’s doctors supporting your wife’s need to take intermittent leave to care for your children and that her employer has approved her taking FMLA leave intermittently to bring the children to medical appointments. You state that your wife’s employer has not, however, approved her request to take FMLA leave intermittently to attend CSE/IEP meetings. You explain that your children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and that four times a year their school holds CSE/IEP meetings to review their educational and medical needs, well-being, and progress.3 You explain that these meetings include participation by “a speech pathologist, school psychologist, occupational therapist and/or physical therapist employed or contracted by the school district to provide services to the … child under the child’s IEP,” as well as teachers and school administrators. T
Based on the facts you provided, your wife’s need to attend CSE/IEP meetings addressing the educational and special medical needs of your children—who have serious health conditions as certified by a health care provider—is a qualifying reason for taking intermittent FMLA leave.
Your wife’s attendance at these CSE/IEP meetings is “care for a family member … with a serious health condition.” 29 C.F.R. § 825.100(a); see also 29 U.S.C. § 2612(a)(1)(C); 29 C.F.R. § 825.112(a)(3). As noted above, “to care for” a family member with a serious health condition includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b). This includes taking leave to help make medical decisions on behalf of a hospitalized parent or to make arrangements to find suitable childcare for a child with a disability. See Romans v. Michigan Dep’t of Human Servs., 668 F.3d 826, 840–41 (6th Cir. 2012) (holding that an employee was entitled to take FMLA leave to join his sister at a hospital to make decision regarding whether to keep their mother on life support); Wegelin v. Reading Hosp. & Med. Ctr., 909 F. Supp. 2d 421, 429–30 (E.D. Pa. 2012) (holding that an employee was entitled to take FMLA leave to find a daycare to care for her daughter with an autism spectrum disorder and a visual impairment); see also Ballard v. Chicago Park Dist., 741 F.3d 838, 840 (7th Cir. 2014) (noting that the FMLA “speaks in terms of ‘care,’ not ‘treatment’”).
Additionally, an employee may “make arrangements for changes in care,” even if that care does not involve a facility that provides medical treatment. Wegelin, 909 F. Supp. 2d at 430 (quoting 29 C.F.R. § 825.124). This conclusion is consistent with existing WHD policy. In a previous opinion letter, WHD stated that an employee was entitled to take FMLA leave to attend “[c]are [c]onferences related to her mother’s health condition,” because her attendance at these conferences was “clearly 3 essential to the employee’s ability to provide appropriate physical or psychological care” to her mother. WHD Opinion Letter FMLA-94, 1998 WL 1147751, at *1 (Feb. 27, 1998). Similarly here, it appears that your wife’s attendance at IEP meetings is “essential to [her] ability to provide appropriate physical or psychological care” to your children. Id. Your wife attends these meetings to help participants make medical decisions concerning your children’s medically-prescribed speech, physical, and occupational therapy; to discuss your children’s wellbeing and progress with the providers of such services; and to ensure that your children’s school environment is suitable to their medical, social, and academic needs. Your child’s doctor need not be present at CSE/IEP meetings in order for your spouse’s leave to qualify for intermittent FMLA leave.
RELEVANT LEGAL RULES:
The FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider and provides, in relevant part, that an eligible employee of a covered employer may take up to twelve weeks of job-protected, unpaid FMLA leave per year “to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. § 2612(a)(1)(C); see also 29 U.S.C. § 2611(11) (defining serious health condition); 29 C.F.R. § 825.112–.115. Care for a family member includes “both physical and psychological care” and “mak[ing] arrangements for changes in care ….” 29 C.F.R. § 825.124(a)–(b). An employee may use FMLA leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition. See 29 U.S.C. § 2612(b)(1); 29 C.F.R. § 825.202. However, an employer may require an employee to timely provide a copy of a certification—issued by a health care provider and meeting certain criteria— supporting his or her request to take such leave. See 29 U.S.C. § 2613(a)–(b); 29 C.F.R. § 825.305–.306.
This letter responds to your request for an opinion on whether an employer may delay designating paid leave as Family and Medical Leave Act (FMLA) leave if the delay complies with a collective bargaining agreement (CHA) and the employee prefers that the designation be delayed.
ANSWER: NO - Once your employer has enough information to determine that an employee’s leave request qualifies as FMLA leave, your employer must designate the leave as FMLA leave. As noted in WHO Opinion Letter FMLA2019-1-A, once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave. See WHO Opinion Letter FMLA2019-1-A, at * 1; see also 29 C.F .R. § 827 .700(a) (“[T]he rights established by the Act may not be diminished by any employment benefit or program” including a CBA); WHO Opinion Letter FMLA2003-5, 2003 WL 25739623, at *2 (Dec. 17, 2003) (“Failure to designate a portion of FMLA-qualifying leave as FMLA would not preempt … FMLA protections …. “). This is the case, for instance, even if the employer is obligated to provide job protections and other benefits equal to or greater than those required by the FMLA pursuant to a CBA or state civil service rules. See 29 U.S.C. §§ 2652-53; 29 C.F.R. § 825.700. You have indicated that your employer now requires employees to substitute FMLA leave for accrued paid leave, which means that the leave is both FMLA leave and CBA-protected paid leave. If, pursuant to a CBA and other policies, your employer provides for the accrual of seniority when employees are utilizing accrued paid leave, it must permit employees to accrue seniority when they are substituting FMLA leave for paid leave. Failure to permit an employee to accrue seniority when the employee is substituting FMLA leave for accrued paid leave, if the employee would otherwise be permitted to accrue seniority when utilizing accrued paid leave, would constitute interference with the employee’s FMLA rights, in violation of section 105(a) of the Act. See 29 U.S.C. § 2615(a); 29 C.F.R. §§ 825.209(h), 825.220(c). Thus, your employer is properly applying the FMLA by requiring that FMLA-qualifying leave be designated as FMLA
We acknowledge that the statute explicitly provides that an employee may, but is not entitled to, accrue seniority while taking FMLA leave. See 29 U.S.C. § 2614(a)(3); 29 C.F.R. § 825.215(d)(2). However, the prohibition against discriminating against employees who take FMLA leave described above, which also appears in the statutory text, see 29 U.S.C. § 2615, requires that the employer’s established policy for providing benefits when the employee is on other fonns of leave (paid or unpaid, as relevant to the circumstances) be applied to FMLA leave. 3 leave. However, given your employer’s policies regarding accrual of seniority, when an employee takes FMLA leave that runs concurrently with CBA-protected accrued paid leave, the employee’s seniority status would be the same as it would if the employee took only CBAprotected accrued paid leave. 5
