The Federal Sector FMLA Blog

No FMLA Expansion Today: President Announces Pocket Veto of Military Spending Bill

Expansion of the the FMLA to cover leave for family members in the military was derailed by the President's "pocket veto" yesterday of the defense spending bill recently passed by Congress.  The President's veto, however, was not due to his objection to an expansion of the FMLA.  Rather, in announcing his pocket veto President Bush indicated his opposition to an amendment allowing civil suits against the Iraqi government for damages incurred during the Saddam Hussein era.  President Bush indicated that the amendment would "imperil billions of dollars of Iraqi assets at a critical juncture in that nation's reconstruction efforts."

The Democratic leadership expressed surprise and disappointment by the President's action because the matter was not identified as a point of contention in discussions with the White House as the legislation was being drafted. 

Congress has not ruled out dropping the offending language on its return in mid-January 2008.

Comment:  The pocket veto of President Bush may have only delayed the expansion of the FMLA by a few weeks.  In any event, the matter will undoubtedly be addressed anew in a few weeks because a defense spending bill needs to be passed to fund the military.   

DOL Announces That It Will Propose Changes to the FMLA Regulations in January 2008

The DOL announced on December 10, 2007, its intention to issue proposed FMLA regulations in January 2008. The primary focus of the proposed regulations is intended to address the Supreme Court's decision in Ragsdale v. Wolverine World Wide Inc. 535 U.S. 81 (2002).  There, the Supreme Court found invalid the penalty imposed by 29 CFR 825.700(a) for an employer's failure to timely notify an employee that it designated leave as FMLA qualifying absent evidence of actual prejudice to the employee.  The penalty is that the leave taken does not count against the employee's 12 week entitlement. This could result in the employee receiving more than 12 weeks of FMLA leave in a year. 

The DOL announced that it "intends to propose revisions to address issues raised by this and other judicial decisions."  It is unclear whether the proposed rules will be limited to court decisions that have invalidated existing penalty provisions for an employer's notification failures, or whether it will use the opportunity to address a growing number of court decisions that have challenged the validity of 14 FMLA regulations.

Comment:  You can almost hear Michael Buffer announcing: "Let's Get Ready to Rumble!"  Employer and employee associations and labor unions should prepare an action plan to address the proposed rule changes.  Groups might begin to review court decisions finding invalid the current DOL penalty provisions in 29 CFR 825.110(d), 825.208(c), and 825.700(a).  From there, you might want to look at any other cases that have invalidated any other DOL FMLA regulation.  A closer look at the recent DOL Information Request Report of the 15,000 public comments might also be in order to prepare for what should be a Battle Royal on proposed regulatory changes as the Presidential campaign really begins to pick up steam.

Changes to the DOL FMLA regulations will likely result in changes to the OPM FMLA regulations. The OPM FMLA regulations governing civil service employees were derived from the DOL FMLA regulations.  The same is true for the FMLA regulations that apply to congressional employees. All federal sector employees, unions, and employers have a stake in the outcome of changes to the DOL FMLA regulations.   

You can almost see the deal being brokered.  President Bush agrees to sign the expansion of the FMLA for military families pending in the Military funding bill in exchange for some employer-friendly regulatory changes in the current DOL regulations.

Happy Holidays!

 

Senate Passes Expansion of FMLA for Federal Employees

By a 90-3 vote, the Senate passed legislation expanding the Family and Medical Leave Act for federal civil service employees.  The legislation was an amendment to a larger piece of legislation funding the military.  The House passed similar legisation on December 14, 2007.  Differences between the House and Senate versions of the legislation were ironed out in conference before passage by the Senate. 

The legislation may be viewed at http://thomas.loc.gov/cgi-bin/cpquery/?&dbname=cp110&sid=cp110K2Okk&refer=&r_n=hr477.110&item=&sel=TOC_635036&

The legislation creates two new forms of FMLA leave.  An eligible employee may take up to 12 weeks of FMLA leave because of a "qualifying exigency" arising out of the fact that the employee is on or has been called to active duty in the Armed Forces.  The Department of Labor is left to determine what constitutes a "qualifying contingency."

An eligible employee who is the primary care giver of an servicemember with a combat-related "serious injury or illness" may also take up to 26 weeks of FMLA leave in a single 12-month leave year to care for the injured servicemember.  The restriction to a single leave year limits this type of leave to a one-time use.  A "serious illness or injury" is independently defined as an injury or illness incurred in the line of duty that may render the member medically unfit to perform their duties.  This may be very different than how a "serious health condition" is currently defined. 

Interestingly, the legislation also creates a new category of eligible employee entitled to FMLA leave to care for an injured servicemember.  In addition to spouse, son, daughter, or parent, the legislation permits someone who is the "next of kin" to take FMLA leave for this purpose.  Next of kin is defined as the nearest blood relative to the service member.  And you thought the FMLA could not get any more complicated!   

The legislation caps FMLA leave in any one year to a total of 26 weeks.  Employers are permitted to require certification to verify the call to active duty and/or the need for FMLA leave due to care for an injured servicemember. 

The legislation next goes to the President.  Bill Lenonard of SHRM reports that sources have indicated that President Bush will sign the legislation soon, and may do so before Christmas.  http://www.shrm.org/hrnews_published/articles/CMS_023963.asp 

Comment:  Stay tuned!   

Third Circuit Finds Adequate Notice of Need for FMLA Leave Does Not Require Exact Dates and Duration of Leave

To perfect the right to FMLA leave an eligible employee must provide his or her employer with reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA.  In providing notice, the employee need not use any magic words.  The employee does not have to expressly assert rights under the FMLA or even mention the FMLA.  The critical question is how the information conveyed to the employer is reasonably interpreted. 

An employee who needs medical treatment may inform his or her employer of the need for leave before scheduling treatment in order to reasonably accommodate the needs of the employer.  An employee who does not cite to the FMLA or provide the exact dates or duration of the leave nonetheless may provide his or her employer with sufficient information to reasonably apprise the employer that the employee's request may be covered by the FMLA.

In Sarnowski v. Air Brooke Limousine, Inc., No. 06-2144, 2007 U.S. App. LEXIS 28668 (3d Cir. Dec. 12, 2007), the Third Circuit vacated and remanded the award of summary judgment to the employer dismissing the Sarnowski's FMLA interference claim.  In that case, Sarnowski was terminated eight days after informing his supervisor that his doctor had advised him of the need to monitor his heart and the possible need for additional surgery and 6 weeks of leave.  At the time, Sarnowski had only recently returned to work after missing 6 weeks of work due to quintuple coronary artery bypass surgery.  The court found that the Air Brooke had sufficient notice of Sarnowski's intent to take leave to bar Air Brook from interfering with his FMLA rights.

Comment:  FMLA protection can be invoked by employee notice that they may need FMLA leave at some unknown time in the future and for an unknown duration.  The decision certainly can be interpreted in a way that invites employee abuse. 

For example, an employee who may need intermittent leave at some unknown point in the future notifies the employer of a serious health condition in accord with Sarnowski.  Three years later the employee is absent without warning. The employee claims that adequate notice of the need for leave was provided three years earlier. 

Employers might argue that notice three years earlier was insufficient. Remember, Sarnowski required that the notice provide the employer with "reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA."  The facts of Sarnowski suggest that a determination of the need for surgery and additional leave pending the results of further monitoring was reasonably imminent, not open-ended.  Of course, one could argue the opposite; that court in Sarnowski did not place any time limit on when leave must be taken after notice is provided.

Allowing employees to request leave even though they don't know if or when it may start also burdens the employee.  The FMLA places temporal limitations when an employee must request leave based on whether the need for leave is foreseeable or not.  Employer's could argue that Sarnowski requires employee's to notify the employer of the need for leave even though the employees does not yet know the schedule or amount of leave needed.  If the employee waits until they know their leave schedule their request for leave may be untimely.  If the request is untimely, an employer may have the right to delay or deny FMLA leave.

The MSPB has applied Title I court decisions regarding employee notice of the need for FMLA leave to civil service employees covered by Title II of the FMLA. 

House Passes Military Spending Bill Expanding FMLA

Peter Urban of the Connecticut Post reported that the House overwhelmingly approved legislation Wednesday that would authorize $696 billion in military programs and set Pentagon policies including an expansion of family medical leave for wounded service members.

The legislation, introduced by Senator Dodd in August (similar legislation was also introduced by other Democratic Presidential contenders) includes an expansion of the Family and Medical Leave Act providing up to six months of leave to family members of combat-injured service members to care for their loved ones. 

The legislation was approved 370-49 and is expected to pass the Senate today so it can be sent to the White House for President Bush's almost certain approval.

The full article may be viewed at http://www.connpost.com/localnews/ci_7704930

Comment:  We could see a major expansion of the FMLA in weeks.  You may view several prior posts regarding the proposed expansion in the Legislation section of this Blog. 

Of course, President Bush may veto the Military spending bill on other grounds, perhaps because it contains excessive pork.  Generally, however, these matters are worked in Committee because, ultimately, the government needs money to keep running.

If the FMLA is expanded, the DOL could use the opportunity to amend the existing FMLA regulations in light of the 15,000 comments it recently received on the subject as it drafts new regulations to implement the military family leave legislation.  Stay tuned!

Leave Due to "Depression" Insufficient Notice for FMLA Protections

An employee's request for leave due to "depression" failed to adequately notify the employer that the absence may be FMLA-qualifying.

The issue was addressed in Rask v. Fresenius Medical Care North American, No. 06-3923, 2007 U.S. App. LEXIS 28198 (8th Cir. Dec. 6, 2007).  Elizabeth Rask was terminated from her job as a patient care technician for Fresenius when she failed to come to work on May 28.  Prior to that, she had received a series of disciplinary actions for attendance problems.  Rask sued, alleging that her termination violated the FMLA.  She claimed that she should not have received discipline for some of her depression-related absences as they should have been covered by the FMLA.  The district court awarded summary judgment to Fresenius.  Rask appealed.

On appeal, Rask argued that her supervisor's had prior notice that she suffered from depression and the side effects of medications for same which required periodic absences.  With prior notice, her last request for leave "for help with my medication still, I'm still having a lot of side effects from what they put me on," was sufficient notice of her need for FMLA leave.  The court disagreed.

The court opined that, while mental illness can be an FMLA-covered "serious health condition" if it satisfies the statutory and regulatory definitions, the FMLA does not "include depression in all of its forms."  The court continued:

Depression, like many illnesses, is a condition with many variations, and in common parlance the word is used to describe a wide variety of symptoms, including simply "a state of feeling sad."   

Because of the broad scope encompassed by the term "depression," the court went on to find that "Ms. Rask would need to apprise Fresenius of more than the mere fact that she had been diagnosed with something called"depression" to put them on notice that she had a serious health condition."

The court went on to distinguish the facts from the situation in Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002).  In that case, the Eighth Circuit found that a genuine issue of material fact existed as to whether a bank employee with depression put the bank on notice that she needed FMLA leave by telling them she would be absent for "depression again."  The court noted that in Spangler the employee's supervisors knew that the employee had been diagnosed with depression and had taken two formal leaves of absence for treatment of her depression. 

Here, in contrast, the court found that "Fresenius...did not have the contextual knowledge that the employer in Spangler had that would link the statement with a serious health condition.  Rask pointed to the fact that she had requested leave on an earlier occasion from a supervisor who knew she was depressed because of side effects from medication.  The court observed:

We conclude that there is no evidence in the record that Ms. Rask at any point gave her supervisors any details about her depression, its severity, or any incapacity that it might give rise to, sufficient to indicate that it, as opposed to the side effects from her medication, was serious. The side effects in this case are not covered by the FMLA because there was no evidence that they were a "chronic health condition." 

The court went on to note that, at best, Rask's supervisor was aware that she was depressed "with all the ambiguity that the word entails.  When Ms. Rask said that she would be absent for "help" with my medication," Fresenius lacked any context to indicate that the side effects of Ms. Rask's medications were not the cause of the absence.  It also lacked any context to link this absence with a serious health condition."

Comment: To perfect the right to FMLA leave, an employee must apprise his or her employer of the specifics of his or her health condition in a way that makes it reasonably plain that it is serious.  It is not a difficult burden.  Rask teaches that medical "buzz" words like "depression" cover such a broad spectrum of potential illnesses, from having a bout of the "blues" to incapacity requiring institutionalization, that merely invoking "depression," without more information, fails to adequately apprise the employer that the leave may be FMLA-qualifying.  Note that the reference to "depression" was not even sufficient to shift the burden  of inquiry to the employer.

To perfect the right to FMLA leave, employee's will want to provide more detailed information regarding the nature of their illness, its severity, and whether the illness has caused incapacity. 

The Eighth Circuit covers North and South Dakota, Minnesota, Nebraska, Iowa, Missouri, and Arkansas.

Business Lobby for Favorable FMLA Changes During the Final Year of the Bush Administration

The Sunday New York Times reported that lobbyists representing the interests of business and employers have stepped up their efforts to gain favorable regulatory changes to the Family and Medical Leave Act during the final days of the Bush Administration.  The increase in business lobbying is being propelled by the perception that the Bush administration is more favorable to business interests than the likely Democratic administration that will result from the 2008 elections.

The article identified changes to the FMLA as a priority of many employers in 2008.  Changes may include a push to narrow the definition of a "serious health condition" and restricting the availability of intermittent leave for chronic conditions that flare up unexpectedly.

The article confirmed that changes favorable to business in a a Democratic administration may be difficult.  As evidence, the article cited comments by Senators Clinton, Obama, and Dodd favoring expansion of the FMLA.

The article may be viewed in its entirety at http://www.nytimes.com/2007/12/02/washington/02lobby.html?hp

Comment: The FMLA will continue to play a central part in the run up to the 2008 elections.  Withg that said, it is hard to imagine that the Bush administration will propose changes to the FMLA in light of the fact that it recently declined the opportunity to make changes incident to the solicitation and receipt of thousands of public comments by the U.S. Department of Labor regarding the current FMLA regulations.  The solicitation of such comments usually indicates that an agency is about to propose changes to existing regulations.  In an unusual move, the DOL elected to issue a report detailing some of the public comments it received on the current FMLA regulations in lieu of proposing changes.  Still, stranger things have happened. Stay tuned!