The FMLA Blog

FMLA Leave Cited As Evidence that Employer Reasonably Accommodated Disabled Employee

The Eleventh Circuit in Santacrose v. CSX Transportation, No. 07-15532, 2008 U.S. App. LEXIS 16606 (11th Cir. Aug. 5, 2005)(unpublished) found that CSX had reasonably accommodated Santacrose's disability (bad back) by allowing him to maintain an eight-hour schedule and avoid overtime through a combination of sick leave and intermittent FMLA leave.  Santacorse wanted to avoid overtime through an eight-hour work restriction.  He did not want to use his company sick leave or FMLA leave to avoid overtime.  The court noted that a disabled employee is not entitled to the accommodation of their choice, but only a reasonable accommodation.  

Comment:   I am skeptical that an employer should receive ADA reasonable accommodation credit for obeying the law and granting FMLA leave to which an employee has a legal entitlement.  While it may be "reasonable," obeying the minimum dictates of the law does not require an employer to accommodate anything.  Compliance with all labor and employment laws should be "baked into the cake" in terms of employer standard operating procedures.          

My opinion notwithstanding, the case certainly supports the position that FMLA leave is a form of ADA reasonable accommodation for an employee whose disability requires time off from work. 

The Eleventh Circuit covers Florida, Alabama, and Georgia. 

Union Officials Not Individually Liable For "Acting in the Interest of an Employer"

In Cole v. Beros and Jordan, No. 2:08-cv-541, 2008 U.S. Dist. LEXIS 57669 (W.D. Pa. July 29, 2008), the employee sued the Teamsters Local President and attorney for violation of the FMLA.  Cole blamed the Local President and attorney after she lost a grievance regarding her removal.  Cole was discharged fifteen days short of meeting the one-year eligibility requirement for FMLA leave.  She believed that, had the Local President and attorney argued the grievance the way she wanted, she would have won the grievance, gained the 15 days of employment, and been entitled to job-protected FMLA leave for the absence giving rise to her removal.  Ms. Cole was apparently unimpressed with the $ 7500 settlement the Union secured for her; she wanted her job back. 

In dismissing the case, the court observed that, while "individuals acting in the interest of an employer " may be held individually liable under the FMLA, 29 CFR 825.104(d), the Local President and Attorney were not acting in the interest of her employer within the meaning of the FMLA. 

Comment:  This is a case of first impression.  In most cases, "individuals acting in the interest of an employer" has been applied to managers and supervisors.  Individual managers and supervisors can be sued, in addition to the employer, for decisions they make that violate an employee's FMLA rights. 

Union officials can breath a little easier knowing that disagreement with a bargaining unit member's arbitration strategy will not render them individually liable for violation of the FMLA (as agents of the employer no less).  On the other hand, the Union had to waste time and resources to get the civil suit dismissed.     

"Checking On" Son Several Times During Day Did Not Qualify as Providing Physical or Pschological Care

In Brehmer v. Excel Energy, Inc., No. 06-3294 (JNE/JJG), 2008 U.S. Dist. LEXIS 59130 (D. Minn. Aug. 4, 2008),the court found that the employee did not qualify for FMLA leave "to care for" Cody, his girlfriend's eleven-year old son, during her hospitalization for surgery.  Cody allegedly suffered from ADHD and Tourette Syndrome, which Brehmer claimed constituted an FMLA-covered serious health condition.   

On the day in question, Cody was left in the care of his girlfriend's sister and a male tenant who rented the basement of his girlfriend's home.  Brehmer alternated his time between the hospital and his girlfriend's home.  He testified that he returned to the home several times during the day to "check on" Cody.  The court observed:

While Brehmer's actions toward Cody and his concern for Cody may be laudable, they do not qualify under the broadest reading of the statute as physical or psychological are under the FMLA. The FMLA does not protect mere visitation.      

Because Brehmer did not care for Cody on the day in question, he could not establish that his absence from work that day was protected by the FMLA.  The court awarded summary judgment in favor of Excel Energy dismissing Brehmer's FMLA lawsuit.

Comment:  In order to fall within the protections of the FMLA for leave "to care for" a covered family member with a serious health condition, the employee must provide physical or psychological care to the family member.  Without more, simply visiting the family member with a serious health condition is not enough.  While the FMLA does not dictate the level of physical or psychological care, there has to be some evidence that care was in fact provided.   

Another interesting aspect of the case is that it addressed an in loco parentis relationship.  Persons who are in loco parentis include those with day-to-day responsibilities to care for and financially support a child.  29 CFR 825.113(c)(3).  A biological or legal relationship is not required.  The DOL regulation does not detail what "day-to-day" activities would support an in loco parentis relationship, and how long those activities must be performed.  Nor do the regulations indicate the quantum of financial responsibility for the child the employee must assume.   

In Brehmer, the court found, at least for purposes of summary judgment, that Brehmer may have held an in loco parentis relationship with Cody.  The court credited Brehmer's affidavit that, for the past several months,  he contributed more than half of Cody's financially support, and that he cared for Cody as if he were his son, including helping him eat, dress, go to bed, took him to doctor's appointments, attended his softball games, and went to Cody's school when Cody had problems there.  The court did not find that these activities established an in loco parentis relationship, only that they might- which was sufficient to defeat summary judgment for the employer on this point.     

The court also went on to find that the record evidence did not support the claim that Cody had a serious health condition within the meaning of the FMLA.  Apparently the only evidence offered was Brehmer's own statement, which the court found insufficient.  The court, like most courts, wanted medical evidence of Cody's condition to determine if it was a "serious health condition" within the meaning of the FMLA.

Alteration of FMLA Medical Certification Results in Criminal Indictment of NJ Postal Worker for Forgery, Tampering with Public Records

A postal employee from Brick, New Jersey was indicted on forgery and tampering with public records charges for altering an medical certification in order to obtain additional FMLA leave.  

As reported in the Friday, July 18, 2008, Asbury Park Press, an Ocean County grand jury indicted Brick New Jersey postal worker Vincent Dawidowicz for altering a medical certification originally prepared by his physician.  Dawidowicz, according to the article, added that he suffered from a lifetime condition for which he would need to take two to three days of FMLA leave once or twice a month. 

If convicted, Dawidowicz faces up to five years in prison.  Under New Jersey law, forgery is a third degree crime carrying a maximum prison term of five years.  Tampering with public records is a fourth degree crime with a maximum eighteen-month prison sentence.

Comment: Altering an FMLA medical certification is NEVER a good idea. Courts have consistently sustained the discharge of employee's who have altered their FMLA medical certification.  As demonstrated by Mr. Dawidowicz, employee's also run the risk of criminal penalties.  Even if the prospect of actual prison time is remote (particularly for a first offense), a criminal record for forgery and tampering with public records will, for all practical purposes, render an individual unemployable for a wide range of decent paying jobs.  Being stuck on the bottom rung of the income ladder will have lasting effects for the employee and the employee's family.  There is also the high legal cost of defending a criminal indictment, to say nothing of the public shame for the employee and the employee's family.  

Employees who believe that their FMLA medical certification does not accurately describe their need for FMLA must work within the system to correct the certification.  That means the employee should go back to their medical provider to secure the changes.  If the medical provider is unwilling to change the certification, there is a whole telephone book full of medical providers the employee can try.  The FMLA does not require that you stick with your original medical provider in order to modify a medical certification.  Employee's who, through frustration with the system, take matters into their own hands with a few strokes of the pen run the considerable risk of losing everything.  DON'T DO IT!     

The full Asbury Park Press article is attached     http://www.app.com/apps/pbcs.dll/article?AID=/20080718/NEWS02/807180474/1001/NEWS           

No Good Deed Goes Unpunished: Employer's Can Be Sued For Violating More Generous FMLA Leave Policies

Employers can, knowingly or unknowingly, adopt family and medical leave (FML) policies that are more generous than the minimum required by the FMLA.  Violation of those more generous policies may subject the employer to civil suit for monetary damages for breach of contract or promissory estoppel based on the employee's detrimental reliance on the employer's policy. Such a claim is not based on the FMLA. Nor will the employer be able to successfully defend these type of actions by arguing that the FMLA does not apply.          

The issue was recently addressed by the Seventh Circuit in in Peters v. Gilead Sciences, Inc.,No. 06-4290, 2008 U.S. App. LEXIS 14894 (7th Cir. July 14, 2008).  In that case, Gilead policy permitted employees to take FML leave if they met two requirements: (1) at least 12 months of employment with the company; and (2) at least 1250 work hours in the 12 month period preceding leave commencement.  Those requirements are the same as the eligibility requirements of the FMLA. What Gilead's policy did not include, however, was the FMLA requirement that Peters be employed at a worksite that employs at least 50 employees within 75 miles- the so-called 50/75 rule.  By not including the 50/75 rule, Gilead's FML policy was more generous than the FMLA. Peters was not entitled to FMLA leave because he did not work at a worksite where there were at least 50 Gilead employees within 75 miles.

Peters applied for and was approved FML leave for a work-related shoulder injury. Gilead provided him with a letter confirming his right to take up to 12 weeks of FMLA leave. The letter repeated the 12 months and 1250 hours eligibility requirements that was also set forth in the employee handbook.  Consistent with the policy, the letter did not address the 50/75 rule.  Like the handbook, the letter also guaranteed his right to reinstatement for such leave if he returned to work by a specified date.  Unfortunately for the employer, it miscalculated the when 12 weeks of FMLA expired.  The miscalculation shorted Peters a month of FML leave.  Gilead replaced Peters before the true expiration of his FML leave.  Peters was medically cleared to return to work before his 12 weeks of FMLA leave expired. 

Peters sued alleging that his termination violated the FMLA.  He also added a state law promissory estoppel claim.  Promissory estoppel is a cause of action independent of the FMLA that permits the enforcement of a promise that otherwise lacks the elements of a contract.  Gilead defended the suit by arguing that Peters was not eligible for FMLA leave because he did not meet the 50/75 requirement.  The trial court agreed.  After equating his promissory estoppel claim with equitable estoppel, the trial court also found that Peters failed to establish that he should be deemed eligible based on the misrepresentations of Gilead. 

On appeal, the Seventh Circuit reversed the decision of the trial court.  The Seventh Circuit found that, even if Peters was not eligible for FMLA leave, he may have an FMLA-like claim for breach of contract or promissory estoppel based on his detrimental reliance on Gilead's handbook policy and the letters he received approving his FMLleave.  The trial court erred when it equated equitable estoppel, a defensive doctrine, with promissory estoppel, a cause of action.  Both are based on detrimental reliance.  The Court remanded the matter back to the trial court to address those claims.

Comment: Employer FML policies frequently provide greater rights than the minimum required by the FMLA.  In addition to dropping the 50/75 eligibility requirement, employers may allow employees to take FML leave for siblings or other family relatives beyond those identified in the FMLA (spouse, daughter, son).  Employer policies may also granted more than the minimum 12 weeks of FMLA leave.  Violation of those more generous policies may/may not create a cause of action for violation of the FMLA.  They may, however, create a contract or promissory estoppel cause of action for violation of the employer's FMLA-like leave policies.  The fact that you did not intend to create more generous FML rights may not relieve you from suit. 

To avoid inadvertently creating greater FML rights (which can be the basis of civil suit) than the minimum required by the FMLA, employers need to exercise great care when drafting and executing their family leave policies. Consistent with the mandates of state law, handbooks and manuals should include prominently displayed disclaimers that the handbook does not create any express or implied contract rights. Employers should also consider having their FML policies independently audited to identify areas where the policy exceeds or fails to meet FMLA requirements. With that information, the employers can make informed decisions on whether it wishes to continue to provide more generous FML policies or not.  Bosland Consulting Group can help you with such audits.     

The Seventh Circuit covers Wisconsin, Illinois, and Indiana.                   

Employee's Right to Return to Work From FMLA Leave May Not Be Denied Based On Inability to Meet Non-Essential Job Function

Under the FMLA, an employee is entitled to reinstatement to his or her former, or an equivalent position upon returning from FMLA leave.  However, the right to job restoration is qualified; it is not absolute. The FMLA does not require an employer to reinstate an employee who is unable to perform all of the essential functions of the employee's pre-leave position at the time the employee seeks to return to work.

In Carstetter v. Adams County Transit Authority, No. 1:06-CV-1993, 2008 U.S. Dist. LEXIS 51874 (M.D. Pa. July 8, 2008), the plaintiff worked as a vehicle maintenance mechanic for ACTA.  The position primarily required him to perform routine maintenance on county vehicles.  His position required that he occasionally drive ACTA vehicles to move or test them incident to the performance of maintenance.  ACTA required Carstetter to obtain an annual medical clearance from the Pennsylvania DOT, which is necessary to operate commercial vehicles on public roads.  As a maintenance mechanic, Carstetter did not operate commercial vehicles on public roads. 

Carstetter suffers from diabetes, sleep apnea, depression, and anxiety.  He took and failed his required DOT medical examination shortly before it expired.  He alerted his supervisor that he would not be able to renew his medical clearance before the expiration date.  Carstetter requested FMLA leave prior to the expiration date to address the situation.  ACTA did not place him on FMLA leave, but granted him short-term disability.  It subsequently fired Carstetter when he applied for unemployment benefits to make up for the short-fall in pay from short term disability (which paid 60% of his salary). 

Carstetter sued, alleging interference with and retaliation for exercising his FMLA rights.  ACTA objected to the recommendation of the magistrate judge denying summary judgment to the ACTA on the FMLA claims.  ACTA argued that it did not interfere with his right to return to work from FMLA leave because Carstetter's medical condition prevented him from performing the essential function of his position, which included the ability to obtain annual medical clearance.  The court disagreed.

The court found that Carstetter raised a genuine issue of material fact regarding his ability to perform the essential functions of his job as a mechanic. The evidence established that, at the time of his request to return to work, Carstetter could operate vehicles for up to 30 minutes without a break, replace tires, change engine fluids, wash vehicles, sweep, and perform other vehicle maintenance duties without accommodation.  Significantly, the court also found that a reasonable jury could conclude that his ability to secure a medical clearance to drive commercial vehicles on public roads was not an essential function of his duties as a vehicle maintenance mechanic.  As such, ACTA may have interfered with his right to return to work. 

Comment:  The decision illustrates two points. First, an employer cannot deny an employee's return from FMLA leave simply because the employee cannot perform all of the jobs requirements on return.  To properly deny an employee's return to work from FMLA leave, an employer must establish that the employee cannot perform all of the essential functions of the job.  Whether a function is essential is determined by ADA standards.  An employee's inability to perform ancillary or non-essential job functions does not relieve an employer from accepting the employee's return from FMLA leave. Stated differently, an employer that refuses to return an employee from FMLA leave based on the employee's inability to perform a non-essential job function violates the FMLA. 

Second, the decision of the court appears incorrect.  The decision assumes that Carstetter's leave request to address his difficulities in securing DOT medical clearance qualifies under the FMLA.  There was no evidence that Carstetter was eligible for FMLA leave benefits, or that he was otherwise incapacitated due to a serious health condition within the meaning of the FMLA.  Indeed, the court's opinion that the medical clearance was not an essential job function critically undermines its assumption that Carstetter was on FMLA leave. 

The FMLA states that an employee is unable to perform the functions of his or her position where the employee is unable to perform one of the essential functions of the position within the meaning of the ADA.  29 CFR 825.115.  If, as the court opined (again, for purposes of summary judgment), that the ability to secure a medical clearance is not an essential function of a mechanics position for purposes of return to work, it would not support Carstetter's request for FMLA leave in the first place.  As such, there was no genuine issue of material fact to preclude summary judgment for ACTA. 

Of course, just because an employee does not have the FMLA right to return to work from leave does not mean that the employee is without recourse.  Employer policy, the terms of a collective bargaining agreement, and/or other state or federal laws may afford the employee a right to job restoration.            

Ninth Circuit Permits Recovery of Lost Wages Due to Emotional Distress Caused by FMLA Violation

The remedial provisions of the FMLA provide that any employer who violates the law will be liable to any eligible employee affected, damages equal to:

Any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation.

The FMLA only permits an employee to recover compensatory damages for actual monetary losses suffered by the employee as a result of an employer's violation of the Act.  The FMLA does not permit the recovery of emotional distress or punitive damages.

In Farrell v Tri-County Metropolitan Transportation District of Oregon, No. 06-35484, 2008 U.S. App. LEXIS 13574 (9th Cir. June 27, 2008), the employer appealed an adverse jury verdict awarding the employee, in relevant part, $1,110.00 in lost wages for the employer's violation of the FMLA.  On appeal, the employer conceded that it violated the FMLA by denying Farrell's requests for FMLA leave.  The employer appealed the jury's finding that Farrell was entitled to $ 1,110.00 in lost wages because of stress or other mental problems resulting from the wrongful denial of FMLA leave that caused him to miss a few days of work. The employer argued that the jury's finding amounts to an impermissible award of emotional distress damages.  The Ninth Circuit disagreed.

The Court found that the jury's verdict did not award Farrell damages for emotional distress, but rather for days of work he missed because of stress or other mental problems resulting from the wrongful denial FMLA leave.  Unlike emotional distress, which requires valuating an intangible, lost wages can, the Court found, be easily quantified in accordance with the remedy provisions of the FMLA.  As actual damages lost by reason of the FMLA violation, the Court found that they could be recovered.

Comment:  The opinion reads the remedial provisions of the FMLA expansively to include actual losses resulting from emotional distress caused by the employer's violation of the FMLA, such as an employee's having to take unpaid days off of work.  The decision does NOT open the door for recovery of emotional distress damages absent evidence of actual monetary loss.  It will be interesting to see how the courts handle proof of causation connecting the claimed actual loss, emotional distress, and the FMLA violation. 

Supreme Court Declines Case Addressing Enforceability of FMLA Waivers in Severance Agreements

On Monday, the Supreme Court declined, without comment, to review the decision of the Fourth Circuit in Progress Energy v. Taylor, 493 F.3d 454 (4th Cir. 2007), which questioned whether the anti-waiver provisions of 29 CFR 825.220(d) preclude the private settlement or release of claims under the FMLA absent the approval of a court or the U.S. Department of Labor.

29 CFR 825.220(d) provides:

Employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA.

In Progress Energy, the Fourth Circuit strictly interpreted this language to preclude all FMLA settlements that were not approved by a court or the U.S. Department of Labor.  The U.S.Department of Labor and most other courts do not agree with the Fourth Circuit's restrictive reading of 825.220(d).  The DOL and other courts would allow an employee to settle an an accrued FMLA claim without the involvement of a court or the U.S. Department of Labor.  

The DOL and all courts agree that an employee may not prospectively waive their FMLA rights.  For example, an employment agreement that required an employee, as a condition of employment, to waive their right to take FMLA leave in the future, or only take 6 weeks a year instead of 12, is unenforceable. 

On behalf of the Bush administration, former Solicitor General Paul Clement urged the Supreme Court to deny the petition for certiorari.  After observing that the Bush administration viewed the Fourth Circuit's opinion was incorrect, Clement argued that the court should turn down the case because the Labor Department was revising the existing FMLA regulations to make it clear that waiver prohibition only applies to prospective rights and not past claims.      

Comment:    The decision of the Supreme Court keeps the split in the circuits on this issue alive, at least for the time being.  It will be interesting to see what happens when the Fourth Circuit gets the opportunity to revisit the issue after the DOL has issued its revised anti-waiver provision.  Until then, to be valid, FMLA settlements in the fourth circuit (N. and S. Carolina, Virgina, W. Virginia & Maryland) require court or DOL approval.

FMLA Does Not Support Retaliation Claim Based on Association with Employee Who Opposed Unlawful Practices

The Fifth Circuit in Elsensohn v. St. Tammany Parish Sheriff's Office, No. 07-30693, 2008 U.S. App. LEXIS 12209 (5th Cir. June 6, 2008) recently addressed whether an employee may sue his employer for retaliation in violation of the FMLA because of his association with his wife, who filed a lawsuit against the same employer alleging violations of the FMLA. 

Lawrence and Wendelle Elsensohn, husband and wife, were both employed by the defendant Sheriff's Office.  Wendelle sued the Sheriff's Office alleging violations of the FMLA.  Lawrence testified that at all times he attempted not to involve himself in his wife's claim except to provide moral support.  If the matter went to trial, however, Lawrence would testify as a witness, a fact known by his superiors in the Sheriff's Office.  

Mrs. Elsensohn settled her lawsuit in October 2004, and subsequently left the Sheriff's Office.  Lawrence remained, where he received excellent job reviews.  Beginning in January 2006, Lawrence applied for several promotions.  He was denied every promotion for which he applied.  He was subsequently told by his supervisor that he would not receive a promotion of any kind.  Lawrence sued after being transferred to a less desirable night shift.  He alleged FMLA interference and retaliation for association with his wife who had opposed Defendant's unlawful practices related to the FMLA.

The Fifth Circuit affirmed the determination of the district court that the FMLA does not permit a spouse to  bring a derivative FMLA claim based solely on the protected activity of the other spouse.  In so finding, the Fifth Circuit noted a split in the courts on this issue involving Title VII, the ADEA, and the ADA.  The Court elected to follow precedent in an ADEA case, where it declined to broaden the anti-retaliation provisions of that statute to permit an employee who has not engaged in protected activity to maintain a retaliation claim based solely on their association with an employee who has engaged in protected activity.  In so finding, the Fifth Circuit noted that the anti-retaliation protections of the ADEA are greater than the protections afforded under the FMLA.  The Court also noted that the plain language of the FMLA does not recognize derivative retaliation claims. 

Comment:  To maintian an FMLA retaliation claim in the Fifth Circuit an employee must actually engage in protected activity.  Protected activity covers any individual who was about to give or has given any information or testimony in any inquiry or proceeding relating to FMLA rights.  Absent engagement in protected activity, a familial or other relationship with another employee who has engaged in protected activity is not enough.    

Given the split in the circuits on this issue, whether an employee will be able to maintain a derivative FMLA retaliation claim may depend on the precedent in that circuit regarding the anti-retaliation provisions of other anti-discrimination statutes. 

Note that the Fifth Circuit also rejected the Elsensohn's claim that he engaged in protected activity because (1) he "was about to give information" in connection with an inquiry on his wife's FMLA case; and (2) but for the fact that his wife's claim settled, he was about to testify hin support of her claim.  The Court found that Mr. Elsensohn did not engage in protected activity, noting that he was never questioned by his employer regarding his wife's claim, he testified that at all times he kept his distance from his wife's claim, and that the alleged retaliatory conduct (the denial of promotions) occurred well after his wife's case had settled.    

The Fifth Circuit covers Texas, Lousiana, and Mississippi.   

White House Timetable for Agencies to Issue Regulations: What Impact on the FMLA?

On May 9, White House chief of staff Joshua Bolton issued a memorandum to the heads of all executive departments and agencies setting June 1 as the deadline to propose any new regulations, and November 1 as the deadline to issue final regulations. The memo mentioned that exceptions to these deadlines could be granted.  The purpose for establishing these deadlines was to avoid the appearance that the Bush administration was rushing the implementation of new rules on its way out the door.  President Clinton imposed a similar timetable during the last year of his administration. 

FMLA Impact

The DOL issued proposed changes to the existing FMLA regulations on February 11, 2008.  The DOL would appear to have until November 1 to issue final regulations implementing those proposals. 

The DOL has also indicated its intention to skip proposed rules and move directly to the issuance of  final regulations implementing the recently enacted military family leave amendments to the FMLA.  As such, the DOL would appear to have until November 1 to issue the final military family leave regulations. 

Comment:  New/revised FMLA regulations will be here sooner than you think.  Stay tuned!