The FMLA Blog

Interaction of FMLA and Genetic Information Nondiscrimination Act of 2008

On May 21, 2008, the President signed the Genetic Information Nondiscrimination Act of 2008 (GINA) into law.  The GINA makes it illegal for companies and insurers to discriminate against people based on their genetic information, such as the predisposition of people to develop breast cancer, sickle cell disease, or diabetes.  

Genetic information is defined as:

1. an employee’s genetic tests
2. the genetic tests of family members of an employee, or 
3. the manifestation of a disease or disorder in family members of an employee.

Family members include the employees, spouse, dependent children, and all blood relatives of the employee, spouse, or child. 

The law also makes it an unlawful employment practice for an employer to acquire genetic information regarding an employee or a family member of the employee, with certain exceptions. Notably, the law permits an employer to acquire family medical history information as part of the FMLA medical certification process, or similar requirements under state family and medical leave laws. An employee would not, therefore, be able to refuse to provide an FMLA medical certification based on the GINA. 

Once acquired, the GINA requires employers to maintain genetic or family medical information pursuant to the confidentiality provisions of the Americans with Disabilities Act. 

The GINA grants employees and individuals remedies similar to those provided under Title VII and similar nondiscrimination laws, i.e., compensatory and punitive damages.  It also provides that no person shall retaliate against an individual for opposing an act or practice made unlawful by GINA.

Comment:  To view the text of the law, see attached:   http://www.govtrack.us/congress/billtext.xpd?bill=h110-493     

  

     

Violation of the FMLA Does Not Support Claim of Intentional Infliction of Emotional Distress

The denial of FMLA leave or the discharge of an employee for requesting leave is "not egregious enough conduct to be considered extreme and outrageous" to support an employee's claim of intentional infliction of emotional distress, at least not in the Seventh Circuit.  The court granted the employer's motion and dismissed the claim.   

Alcazar-Anselmo v. City of Chicago, No. 07 C 5246, 2008 U.S. Dist. LEXIS 32042 (N.D. Ill. April 18, 2008)

Comment:  Even though the tort claim was dismissed, the employee may still seek money damages permitted by the FMLA's own remedial scheme.  The Seventh Circuit covers Illinois, Indiana, and Wisconsin. 

No Such Thing as "FMLA Light Duty," Seventh Circuit Finds

In Hendricks v. Compass Group, USA, Inc., No. 06-3637, 2007 U.S. App. LEXIS 1860-6 (7th Cir. Aug. 6, 2007), the employee injured her shoulder at work while performing her vending driver duties.  She applied for workers' compensation benefits, but did not apply for FMLA leave.  Instead of taking FMLA leave, Hendricks elected to take light duty under her workers' compensation program.  While on light duty she was paid $3.23 less per hour than her regular wages. 

Hendrick's sued alleging that Compass violated the FMLA by paying her less while she was on "FMLA light duty."  The Seventh Circuit disagreed, finding that "[t]here is no such thing as 'FMLA light duty.'"  The FMLA, the Court observed, does not require an employer to pay a certain pay rate while the employee is on leave; the FMLA only requires that an employer permit an employee to take up to twelve weeks of unpaid leave for illness and return to his prior post or an equivalent position.  Light duty is a creature of workers' compensation.  As such, the rate of pay the employee is to receive while on light duty is a matter covered by workers' compensation, not the FMLA.

Comment: FMLA leave is unpaid.  An employee who elects to go on light duty in conjunction with FMLA leave will be paid at the rate dictated by worker's compensation and/or the employer's policies.  The FMLA does not dictate any particular rate of pay.  Hendricks tried to argue that the employer failed to return her to an equivalent position from FMLA leave, as demonstrated by her lower wage rate. The Seventh Circuit found that the wage rate was dictated by workers compensation, not the FMLA.  It found that Hendricks did not have an FMLA right to an equivalent position because she was unable to perform all of the essential functions of her position on return from FMLA leave.      

 

No Right to Recover Under Title VII, the ADA, or the ADEA for Adverse Actions Taken Against an Employee for Exercising FMLA Rights

In Reed v. Southwestern Bell, No. 4:07CV00525 RWS, 2007 U.S. Dist. LEXIS 33429 (E.D.Mo. May 7, 2007), the court dismissed the pro se plaintiff's Title VII, ADEA, and ADA retaliation claims because the were based on violation of the FMLA.  The employee did not assert violation of the FMLA as a cause of action.  The Court opined:

There is not right to recover under Title VII, the ADEA, or the ADA for adverse actions taken against an employee for exercising rights under the FMLA. Title VII only protects claimants who have suffered adverse employment action as a result of exercising their rights under Title VII, not the FMLA. ... The ADA similarly only protects claimants who have suffered adverse employment action as a result of exercising rights under the ADEA, not the FMLA. 

Comment:  Violation of the FMLA will not always support a claim under another federal anti-discrimination statute.  Of course, if an employer denies FMLA leave based on sex, age, race, national origin, or disability, the employee may be faced with a Title VII, ADEA, and/or ADA claim based on violation of the FMLA.  Retaliation claims are a bit different.  Generally, as suggested by the Court in Reed, retaliation claims are based on the exercise of rights guaranteed only by the particular statute being asserted, and not violations of some other statute.  The lesson is: plead your cases well.  

FMLA Does Not Permit Employers to Unilaterally Change CBA Regarding Substitution of Paid Leave for FMLA Leave

In Brotherhood of Maintenance of Way Employees, et. al. v. CSX Transportation, et. al., No. 06-2744, 2007 U.S. App. LEXIS 4782 (7th Cir. March 2, 2007), the Court held that the FMLA does not allow employers to violate collectively bargained contractual obligations protected by the Railway Labor Act (RLA) permitting employees, not employers, to control the right to substitute paid vacation and personal leave for unpaid FMLA leave. 

Suit was brought by a dozen unions contending that the interpretation of the FMLA by five railroad carriers violated employee collective bargaining rights to paid leave.  The collective bargaining agreements (CBAs) provided paid sick, personal, and vacation leave at the election of the employee.  An employee's use of each type of paid leave was governed by procedures for requesting leave, including seniority.  Under the CBA's, employer's could approve or disapprove of the leave, but could not force an employee to take paid leave over their objection.  In recent years the carrier's revised their policies to require in some circumstances that employee use paid leave concurrently with unpaid FMLA leave.  the policies were attempts to avoid "stacking"--that is, exercising the right to contractual paid leave on top of FMLA leave and, thereby , giving the employee the right to more than 12 weeks of leave (paid and unpaid) each year.

The unions argued that the change in policy violated the RLA.  The RLA governs labor-management relations in the railroad and airline industries.  If, the union's argued, a collective bargaining agreement grants employees the right to determine when or how they use paid vacation or personal leave, those provisions prevent the railroads from substituting such paid leave for leave under the FMLA. 

The carriers argued that the FMLA gives them the explicit authority to require substitution. The FMLA authorizes substitution of paid leave for FMLA leave at the employee's election, or the employer may require it.  29 USC 2612(d)(2)(A)-(B).  The carrier's argued that the FMLA trumps the RLA because it is newer and more specific, thus giving the carriers authority to unilaterally institute its anti-stacking policies.  The Court disagreed. 

The Court agreed with the unions' contention that the employer's action constituted an impermissible unilateral change in the terms and conditions of work prohibited by the RLA.  The Court rejected the employer's argument that the newer and more specific FMLA provisions trump the existing RLA prohibitions, characterizing the argument as "the esoteric realm of implied repeal or implied amendment of statutes."  The Court observed:

In looking at two statutes which might be said to deal with the same subject matter, we must apply certain principles.  A specific statute takes presence over a more general statute, and a later enacted statute may limit the scope of an earlier statute.  In re Johnson, 787 F.2d 1179 (7th Cir. 1986).  As to the two statutes involved in the present case, the FMLA is the more recent statute, but whether it ism ore specific depends on how you look at it.  It covers a more specific subject matter--family leave--but its application is far wider than the RLA. Additionally, the RLA grows out of specific needs of the railway industry (and later the airline industry), and from the perspective is more specific.  Asking which is more specific is like asking whether an avocado is more specific than a kiwi.

The RLA, the Court observed, "tells railroad what they must not do--change working conditions except in the manner dictated by the agreements or in [section] 156, which requires notice, a conference, and, in some cases, mediation. Section 2612 of the FMLA simply tells employers what they may do-- require substitution--not what they must do.  A reasonable conclusion is that, while substitution is allowed, carriers cannot require substitution without complying with the procedures set out in the RLA.  Using those procedures the carriers can, and should have, bargained for substitution provisions.

Comment: The FMLA provision that permits employers to substitute paid leave for unpaid FMLA leave does not empower employers to ignore their collective bargaining responsibilities and unilaterally impose paid leave substitution where existing collective bargaining agreements allow employees alone to substitute paid leave for unpaid FMLA leave.  To change such a policy employers must bargain with the union.

Interestingly, the Court concluded that Title 29 USC 2652(a) did not apply.  That section provides that nothing in the FMLA

[S]hall be construed to diminish the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established under this Act...

According to the Court, "[t]here is nothing in the CBAs which provides "greater family or medical leave rights" to the employees."  One could argue that allowing employees alone to decide whether they want to substitute paid leave for unpaid FMLA leave is itself a "greater leave right" for employees than the rights established by the FMLA.  Absent such a restriction, the FMLA would permit the employer to impose paid leave substitution even over the objection of the employee.

FMLA Claims Not Preempted by NLRA

In Clark v. Eagle Ottawa, LLC, No. 06-CV-2028-LRR, 2007 U.S. Dist. LEXIS 12061 (N.D.Iowa Feb. 20, 2007), the employer sought dismissal of plaintiff's FMLA claims on the grounds that they were pre-empted by the National Labor Relations Act (NLRA).  There, Plaintiff alleged that the employer discriminated against him in the terms and conditions of employment due to his union membership and status as chief union steward.  Clark alleged that he was subjected to disparate treatment because of his status as chief steward in that he was required to provide medical recertification for his approved intermittent FMLA leave for migraines more frequently than other similarly situated employees.  Plaintiff was subsequently terminated the day after he informed management that he had contacted the U.S. Department of Labor regarding delays in his return to work from FMLA leave. 

The Employer argued that the Clark's FMLA claims were preempted because they involve an unfair labor practice prohibited under Section 8(a)(3) of the NLRA, 29 USC 158(a).  Section 8(a)(3) makes it unlawful for an employer to discriminate in regard to hire or tenure of employment to encourage or discourage membership in any labor organization.   Pursuant to the decision of the U.S. Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), the NLRA pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the NLRA.  The Court denied the Employer's motion to dismiss the FMLA claims under the Garmon preemption doctrine.

The Court noted that the so-called Garmon preemption doctrine arguably does not apply where, as here, the potential conflict is between two federal statutes (the NLRA and the FMLA) and not between a federal law and a state law.  The Court declined to rule on whether Garmon preemption was implicated because it found that the FMLA and NLRA were not in conflict. After reviewing the burden of proof schemes for FMLA interference and discrimination claims the Court concluded that the "Plaintiff's FMLA claims are not "inextricably intertwined" with the NLRA" as requried for the doctine to apply.  The Court continued:

It is possible to determine whether Defendant violated Plaintiff's right to take intermittent FMLA leave and whether Defendant retaliated against Plaintiff "without reference to substantive labor law."  Moreover, this controversy over Plaintiff's requests to take medical leave due to migraines could not have been presented to the NLRB. 

The critical inquiry in Garmon preemption cases, the Court observed, is "whether the controversy presented to the court is identical to the one that could have been presented to the NLRB."  Here, to determine whether Defendant violated the FMLA it is not, the Court found, necessary to decide whether Defendant's actions violated sections 7 or 8 of the NLRA.  Therefore, the Court concluded that that Plaintiff's FMLA claims were not preempted by the NLRA. 

Alternatively, the Court went on to find that, even if the NLRA and FMLA were in conflict in the case and Garmon preemption applied, the Court would hold that Plaintiff's FMLA claims fall under the "collateral issue" or "peripheral concern " exception to Garmon.  Under Garmon, an exception to the NLRB's primary jurisdiction has been recognized where the conduct at issue is of only "peripheral concern" to federal labor policy.  Noting that other federal anti-discrimination laws have been found to fit within the peripheral concern exception to Garmon preemption, the Court concluded that Plaintiff's FMLA claims would fall under the peripheral concern exception to Garmon preemption.

Comment: Had the Garmon preemption doctrine applied Clark would not have been able to sue his employer for violation of the FMLA in a federal or state court.  Clark would have been limited  to filing an NLRB complaint alleging that his employer engaged in an unfair labor practice.  Any vioations of the FMLA would only be examples in support of Clark's unfair labor practice charge.   

Employer Did Not Regard Employee as Disabled by Suggesting that Employee Should Apply for FMLA Leave

An employer's suggestion that an employee apply for FMLA leave did not constitute evidence that the employer regarded the employee as being disabled within the meaning of the Americans with Disabilities Act (ADA). 

In Robinson v. Lockheed Martin Corp., No. 06-1704, 2007 U.S. App. LEXIS 331 (3d Cir. Jan. 8, 2007), the employee suffered several seizures.  He was out of work on approved disability leave for several weeks.  He was diagnosed as having a seizure disorder.  On returning to work Robinson's supervisor allegedly berated him for not "pulling his weight."  He performance rating indicated that he "needed improvement."  A  proposal to put him on a Performance Improvement Plan was made but never initiated.  At approximately the same time his supervisor suggested that Robinson apply for FMLA leave so that when he felt he couldn't come to work the absence could be charged the FMLA and not simply as an absence.  While he was in the process of submitted forms in support of FMLA leave Robinson was terminated with three others allegedly due to budgetary cutbacks.  Robinson sued alleging that his termination violated the ADA.  He did not assert an FMLA claim.

Robinson argued that he was "regarded as" having a disability by his employer. The ADA protects employees from discrimination who are "regarded as" having a disability, even if the employee, in fact, is not physically or mentally disabled.  As evidence, Robinson argued that Lockheed Martin believed he was disabled based on his supervisor's statement that Robinson should apply for FMLA leave.  The court disagreed.

The Third Circuit found that his supervisor's statement did not create a material issue of fact that Robinson was regarded as" significantly restricted in his ability to work.  The Court noted that "disability" under the ADA and "serious health condition" under the FMLA are different concepts that must be analyzed separately and that the leave provisions of the FMLA are distinct from the reasonable accommodation obligations under the ADA.  The Court also noted that Robinson returned to work after this initial four-week absence to the same job.  It also noted that Robinson was not placed on disability leave after his supervisor suggested that he apply for FMLA leave.   

Comment:  "Disability" within the meaning of the ADA Act and a "serious health condition" under the FMLA are not the same thing.  An employee that is unable to perform "an" essential function of a job is incapacitated within the meaning of the FMLA.  In contrast, to be "regarded as" having a disability, an employee must establish that the employer regarded the employee as suffering from an impairment within the meaning of the ADA Act, not just that the employer believed the employee to be somehow disabled.  The employer must regard the employee as having a physical or mental impairment that substantially limits major life activities as a result of the attitudes of others toward the impairment.  To be disabled from the major life activity of working, an employee must establish that his or her employer believed that the employee was limited in the ability to work in either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.  An employee does not establish that they are "regarded as" disabled from working because they they are precluded from performing their job. 

Of course, an FMLA "serious health condition" can also be "disability" within the meaning of the ADA/Rehabilitation Act.  Unlike the ADA Act, the FMLA does not protected employees who are "regarded as" having a serious health condition.

The Third Circuit covers New Jersey, Pennsylvania, and Delaware. 

FMLA Leave May Be Held Against Employee for Purposes of Qualification for ADA Reasonable Accommodation

To be able to maintain a suit for violation of the Americans with Disabilities Act (ADA) an employee must be a "qualified individual with a disability," which is defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds."  In Payne v. Fairfax County, No. 1:05cv1446 (JCC), 2006 U.S. Dist. LEXIS 79725 (E.D.Va. Nov. 1, 2006), the court addressed whether an employee's leave taken pursuant to the FMLA may be held against the employee in determining whether the employee can perform the "essential functions" of his/her position within the meaning of the ADA.  The court held that it may. 

Plaintiff Stuart Payne was employed by the Defendant as an auto mechanic with the Fairfax County's Department of Vehicle Services.  Regular attendance at work was an essential function of Payne's position.  Payne was diagnosed with panic disorder, irritable bowel syndrome, and Epstein-Barr disease (which manifested itself with fatigue, weakness, a desire to sleep, and a locking of joints and limbs).  Payne requested that his condition be accommodated so that he could come in late, leave early, or miss a day so that he could keep his job.  He incurred frequent unscheduled intermittent absences.  He was repeatedly encouraged to minimize unscheduled absences, reminded of the County's attendance policy, and informed that if he exceeded his FMLA entitlement, his continued employment would be re-examined.  In August 2004, Payne requested sick leave for the period August 20 through September 30.  By this time he had already exhausted all of his available FMLA leave.  Fairfax County denied his request.  He thereafter retired form his position, and sued alleging violations of the FMLA and ADA. 

Payne sued Fairfax County alleging that he was constructively discharged as a result of the County's failure to reasonably accommodate his condition with liberal leave.  The County moved for summary judgment to dismiss the disability claim.  The County argued that Payne was not a "qualified individual with a disability" because he was unable to meet all of the essential functions of the position, namely the essential function of regular attendance.  As such, he was not entitled to the benefits and protections of the ADA.  The court agreed with the County.

In finding that FMLA leave may be used against an employee for purposes of determining whether the employee is an ADA-qualified employee, the court relied on 29 CFR 825.702.  In pertinent part, the regulation provides:

Nothing in the FMLA modifies or affects any Federal or State law prohibiting discrimination on the basis of ... disability.  FMLA's legislative history explains that FMLA is "not intended to modify or affect the ... Americans with Disabilities Act of 1990, or the regulations issued under the act.

The Court found that the DOL regulation "explicitly provides that the FMLA does not modify the ADA in any form.  This leads this Court to conclude that the statutes should be read independently, and if an employee cannot perform the essential function of attendance, even if due to FMLA leave, then the employee is still not a "qualified individual" within the meaning of the ADA.  To rule otherwise would be a judicial expansion of a Plaintiff's rights under the ADA and run directly contrary to" Section 825.702.  In support, the Court cited the decision of the Eighth Circuit in Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002), which held that the rights created by the FMLA are fundamentally different than those granted under the ADA.

Comment:  The court observed that issue has not been addressed by any Circuit court.  Note that it was undisputed that regular attendance was an essential function of the mechanic position in Payne. In ADA litigation, employers often assert that an essential function of the position is regular attendance. Employees, however, often dispute this assertion with evidence of liberal leave policies or practices.  Court have permitted temporary leave as a reasonable accommodation to an employee's disability.  Courts have generally frowned on overly liberal or extensive leave as an ADA reasonable accommodation, finding that such leave is an undue hardship to the employer that does not have to be accommodated.   

       

Denial of Request to Work on Part Time Basis In Violation of FMLA Established Title VII Retaliation Claim

In Mickelson v. New York Life Insurance Co., No. 05-3049, 2006 U.S.App. LEXIS 21944 (10^th Cir. Aug. 28, 2006) Ms. Mickelson was approved for six weeks of FMLA leave.  Two weeks after her leave began she inquired whether she could return to work on a part time basis, which as approved by her doctor.  New York Life denied her request stating that, because of business demands and staffing requirements, her position had to be filled by a full-time employee during her scheduled six-week absence.  HYL’s handbook permitted employee’s to take FMLA leave on an intermittent or reduced schedule if medically necessary.   After her request to work part-time was denied, Ms. Mickelson’s condition worsened.  When her FMLA leave was exhausted she was terminated.  The Tenth Circuit reversed the district court’s award of summary judgment to the employer on her Title VII retaliation claim.  The Tenth Circuit found that district court erred in determining that Ms. Mickelson failed to establish that she suffered an adverse employment action, a necessary element of any retaliation claim.  The district court reached that conclusion by finding that her claim was only actionable under the FMLA and not Title VII.  Ms. Mickelson had not asserted violation of the FMLA.  The Court found that the denial of the request work part-time violated the FMLA.  It also caused Ms. Mickelson to exhaust her FMLA leave sooner and denied her the opportunity to earn income on a part-time basis, which the court found were adverse employment actions. 

Comments: The case reminds us that the FMLA does not exist in a vacuum.  Violation of the FMLA may also be used to establish violation of other applicable laws, including, in this instance, the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964.