The FMLA – A Detailed Review of the Family and Medical Leave Act

The FMLA and the employment rights and circumstances it seeks to protect are many times complicated and delicate to address in real-time. Employees and employers alike can find themselves frustrated with understanding the availability and statutory limits of FMLA protections, permissions, and requirements.

This Freeman Law Insights blog contains legal information, not legal advice, about the FMLA, its requirements, and limitations.

General Rule, 12-Week Leave for Covered Employees of Covered Employers.

The FMLA entitles a covered employee a total of 12 workweeks of leave during any rolling 12-month period because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his job. 29 C.F.R. § 825.200(a)(4). Generally, employees are eligible if they work for a covered employer for at least 12 months, have at least 1,250 hours of service with the employer during the 12 months before the FMLA leave starts, and work at a location where the employer has at least 50 employees within 75 miles. A covered employer is basically an employer with 50 or more employees in twenty or more workweeks in the current calendar year or previous calendar year.

Serious Health Condition.

A “serious health condition” is defined to mean an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Mental illness or allergies may be serious health conditions, but only if all the statutory conditions are met. See 29 C.F.R. § 825.102 (definitions).

Section 825.113 of the FMLA regulations repeats portions of section 825.102’s definition of “serious health condition” and provides additional guidance such as the following:

1. For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
2. The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.
3. The term treatment includes examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. The scope of continuing treatment varies.
4. Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.

To establish a “serious health condition” for continuing treatment, an employee must show that the employee was incapacitated for more than three consecutive calendar days, meaning that the employee either could not work for those days or could not perform regular daily activities, and that employee received ongoing treatment for her condition by a medical professional, either in the form of multiple doctor’s visits or continuing medication.

FMLA-Initiation Processes.

Below is a general outline of the FMLA-initiation steps and responsibilities of the employer and employee:

1. The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification.
2. Within 5 days of receipt of certification, the employer shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.
3. A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed.
4. A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.
5. The employer must provide the employee with seven calendar days (unless not practicable) to cure any such deficiency. If the deficiencies specified by the employer are not cured in the resubmitted certification, the employer may deny the taking of FMLA leave.
6. If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider.
7. An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer’s expense.
8. Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the FMLA, including maintenance of group health benefits. If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer’s established leave policies.

See 29 C.F.R. §§ 825.305, .307.

Reinstatement.

An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. If an employer makes an adverse employment separation decision during an employee’s FMLA leave, the employer must be able to show that the employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. See id. at § 825.216(a)(1).

Equivalent Terms and Conditions of Employment.

An equivalent position is one that is nearly identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perks and status. Id. at § 825.215(a). The following statutory guidelines should be considered:

1.     The employee must be reinstated to the same or a proximate worksite from where the employee had previously been employed. If the employee’s original worksite has been closed, the employee is entitled to the same rights as if the employee had not been on leave when the worksite closed.

2.     The employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule.

3.     The employee must have the same or an equivalent opportunity for bonuses, profit-sharing, and other similar discretionary and non-discretionary payments, each of those latter terms being uniquely defined under judicial opinions applicable to the subject.

4.     The FMLA does not prohibit an employer from accommodating an employee’s request to be restored to a different shift, schedule, or position which better suits the employee’s personal needs on return from leave, or to offer a promotion to a better position. However, an employee cannot be induced by the employer to accept a different position against the employee’s wishes.

See id. at § 825.215(e)-(e)(4).

De Minimis Changes to Position.

As a general rule, de minimis, intangible changes in the employee’s position do not violate the FMLA. 29 C.F.R. § 825.215(f). Courts interpreting the de minimis standard have found that both the loss or addition of minor responsibilities do not violate the FMLA. Whether or not a responsibility is “de minimis” for FMLA purposes depends on the facts and circumstances in the particular FMLA situation.

Worksite.

The term “worksite” has been construed by the Department of Labor to not include a remote-work employee’s residence, at least in regard to determining an employee’s eligibility for FMLA benefits. See DOL Filed Assistance Bulletin No. 2023-1 (Feb. 9, 2023) at pg. 5 (“For FMLA eligibility purposes, the employee’s personal residence is not a worksite. . . . When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.”); 29 C.F.R. § 825.111(a)(2) (addressing the 50-employees-within-75-miles rule and noting: “An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.”).

Intermittent Leave and Transfer to Other Position.

If an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned treatment, including during a period of recovery, the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. 29 C.F.R. § 825.204(a). The alternative position must have equivalent pay and benefits but not necessarily equivalent duties. Id. at § 825.204(b).

The employer may also transfer the employee to a part-time job with the same hourly rate of pay and benefits, provided the employee is not required to take more leave than is medically necessary. Id. at § 825.204(c). An employer may not transfer the employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee. Id. at § 825.204(d). “Any such attempt on the part of the employer to make such a transfer will be held to be contrary to the prohibited acts of the FMLA.” Id.

“When an employee who is taking leave intermittently or on a reduced leave schedule and has been transferred to an alternative position no longer needs to continue on leave and is able to return to full-time work, the employee must be placed in the same or equivalent job as the job he or she left when the leave commenced. An employee may not be required to take more leave than necessary to address the circumstance that precipitated the need for leave.” Id. at § 825.204(e); see id. at § 825.205 (Increments of FMLA leave for intermittent or reduced schedule leave); id. at § 825.209 (Maintenance of employee benefits during FMLA leave).

Interaction with ADA and Other Laws.

“Nothing in FMLA modifies or affects any Federal or State law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability[.]” Id. at § 825.702(a).  For example, if an employee is unable to perform an essential function of the position because of a physical or mental condition, the employee has no right to restoration to another position under the FMLA. However, the employer’s obligations going forward with the employee may be governed or influenced by the Americans with Disabilities Act, state leave laws, or workers’ compensation laws. See id. at § 825.216(c).

“If an employee is a qualified individual with a disability within the meaning of the ADA, the employer must make reasonable accommodations, etc., barring undue hardship, in accordance with the ADA. At the same time, the employer must afford an employee his or her FMLA rights.

The ADA’s “disability” and FMLA’s “serious health condition” are different concepts and must be analyzed separately. The FMLA entitles eligible employees to 12 weeks of leave in any 12-month period due to their own serious health condition, whereas the ADA allows an indeterminate amount of leave, barring undue hardship, as a reasonable accommodation. The FMLA requires employers to maintain employees’ group health plan coverage during FMLA leave on the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period, whereas the ADA does not require maintenance of health insurance unless other employees receive health insurance during leave under the same circumstances. See id. at § 825.702(c).

If the FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave, require an employee to take a job with a reasonable accommodation. However, ADA may require that an employer offer an employee the opportunity to take such a position after the applicable FMLA leave period. An employer may not change the essential functions of the job in order to deny FMLA leave.  See id. at §§ 825.702(d)(1), 825.220(b).

“Key Employee” Rights and Employer Notice Requirements 

Under the FMLA, a “key employee” is an employee within the 10% of the highest paid employees within 75 miles of the employee’s worksite. An employer may deny reinstatement to a key employee, if the employer determines that the restoration of the employee will cause substantial and grievous economic injury to the operations of the employer, not whether the absence of the employee will cause such substantial and grievous injury.

“Substantial and grievous economic injury” is described in 29 C.F.R. § 825.218, and the regulation expressly states that “[a] precise test cannot be set for the level of hardship or injury to the employer which must be sustained.” The definition states that the test is, however, “more stringent than the undue hardship test under the ADA.”

Per the regulation, if permanent replacement is unavoidable, the cost of then reinstating the employee can be considered in evaluating whether substantial and grievous economic injury will occur from restoration to an equivalent position.  If reinstatement of a key employee “threatens the economic viability of the firm, that would constitute substantial and grievous economic injury. A lesser injury which causes substantial, long-term economic injury would also be sufficient. Minor inconveniences and costs that the employer would experience in the normal course of doing business would certainly not constitute substantial and grievous economic injury.” See id. at § 825.218(c).

If an employer leverages key employee job-restoration limitations, the employer should be prepared to prove the substantial and grievous injury that will result from reinstatement to the same or equivalent position. Careful attention must be made to all communications and notices given to the key employee.

A general overview of the employer and key employee rights and notice requirements is set forth below:

1. An employer who believes that reinstatement may be denied to a key employee, must give written notice to the employee at the time the employee gives notice of the need for FMLA leave that he or she qualifies as a key employee.
2. At the same time, the employer must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the employer should determine that substantial and grievous economic injury to the employer’s operations will result if the employee is reinstated from FMLA leave.
3. It is expected that in most circumstances there will be no desire that an employee be denied restoration after FMLA leave and, therefore, there would be no need to provide such notice. However, an employer who fails to provide such timely notice will lose its right to deny restoration even if substantial and grievous economic injury will result from reinstatement.
4. As soon as an employer makes a good faith determination, based on the facts available, that substantial and grievous economic injury to its operations will result if a key employee who has given notice of the need for FMLA leave or is using FMLA leave is reinstated, the employer shall notify the employee in writing of its determination, that it cannot deny FMLA leave, and that it intends to deny restoration to employment on completion of the FMLA leave.
5. It is anticipated that an employer will ordinarily be able to give such notice prior to the employee starting leave. The employer must serve this notice either in person or by certified mail.
6. This notice must explain the basis for the employer’s finding that substantial and grievous economic injury will result, and, if leave has commenced, must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return.
7. If an employee on leave does not return to work in response to the employer’s notification of intent to deny restoration, the employee continues to be entitled to maintenance of health benefits and the employer may not recover its cost of health benefit premiums. A key employee’s rights under FMLA continue unless and until the employee either gives notice that he or she no longer wishes to return to work, or the employer actually denies reinstatement at the conclusion of the leave period.
8. After notice to an employee has been given that substantial and grievous economic injury will result if the employee is reinstated to employment, an employee is still entitled to request reinstatement at the end of the leave period even if the employee did not return to work in response to the employer’s notice. The employer must then again determine whether there will be substantial and grievous economic injury from reinstatement, based on the facts at that time. If it is determined that substantial and grievous economic injury will result, the employer shall notify the employee in writing (in person or by certified mail) of the denial of restoration.

See 29 C.F.R. § 825.219(a)-(d).

Types of FMLA Claims, Briefly.

Basically, there are two types of legal claims under the FMLA:

1. interference or entitlement claims – the employee alleges that an employer denied or interfered with the employee’s substantive rights under the FMLA; and
2. retaliation claims –the employee alleges that the employer discriminated against the employee for exercising FMLA rights.

See 29 U.S.C. § 2615(a)-(a)(2). The difference between the two claims is that the interference claim merely requires proof that the employer denied the employee his entitlements under the FMLA, while the retaliation claim requires proof of retaliatory intent.

Interference includes refusing to authorize FMLA leave as well as “discouraging an employee from using such leave. It would also include manipulation by a covered employer to avoid responsibilities under FMLA.” 29 C.F.R. § 825.220(b). Essentially, an employee must show only that he or she was entitled to the benefit denied.

To establish a retaliation claim, the employee must generally show: (1) that the employee exercised rights afforded by the FMLA; (2) that the employee suffered an adverse employment action; and (3) that there was a causal connection between the exercise of rights and the adverse employment action.

An employee who proves an employer violated the FMLA may be entitled to a wide range of remedies, depending on the situation. Potential remedies include monetary loss sustained by the employee as a direct result of the FMLA violation, up to a sum equal to 26 weeks of wages for the employee; interest; liquidated damages; and equitable relief, such as employment, reinstatement and promotion. The employee may also recover a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the action from the employer. See 29 C.F.R. § 825.400(c).

Insights.

Indeed, the FMLA and the employment rights and circumstances it seeks to protect are complicated. Sometimes the employee is in a most vulnerable of life’s situations, and the employer is usually in a position of trying to make best decisions and ends meet for the company, fellow employees, customers, and other prerogatives within the employer’s decision-making purview. Because of these competing interests, FMLA situations can be emotional and delicate to address in real-time.

Any employer or employee who is facing an FMLA situation, especially unique FMLA situations, is wise to seek out and obtain objective counsel to ensure the many employer and employee requirements, limitations, and rights are understood and lawfully honored and protected. Every FMLA situation is different, and there is no one-size-fits-all approach to managing the requirements or relationships involved in an FMLA employment matter.

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