THE NOTICE REQUIREMENTS OF THE

THE FAMILY AND MEDICAL LEAVE ACT:

TIPS FOR ADMINISTERING LEAVE PROGRAMS

Presented By

Marc H. Klein

Thompson & Knight L.L.P.

1700 Pacific Avenue, Suite 3300

Dallas, Texas 75201

Telephone: (214) 969-1795

Facsimile: (214) 880-3113

December 5, 2003

8Thompson & Knight L.L.P. 2003

TABLE OF CONTENTS

I. INTRODUCTION

In the ten years since the FMLA’s enactment, millions of employees in the United States reportedly have used it to take time off from work for family- and medical-related reasons. As intended, the FMLA provides employees with the opportunity to better balance the demands of their work and families.

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But employers in general C and human resource professionals in particular C often struggle with FMLA administration. Indeed, the problems encountered by employers in administering leaves for serious health conditions have increased rather than decreased since the FMLA’s enactment. Some of the challenges resulting from the FMLA include:

worker resentment of coworkers taking unfair, but “legal” leave;

loss of productivity;

increased absenteeism;

increased administrative and personnel costs;

scheduling difficulties;

unnecessary record keeping;

unworkable notice requirements;

conflicts with existing paid sick leave policies; and

worker resentment of employers’ “invading privacy” asking sensitive questions to determine if the FMLA applies.

Not surprisingly, FMLA claims against employers have increased each year since 1993. During fiscal year 2002, the U.S. Department of Labor had collected nearly $3.7 million in back wages for FMLA violations, a 25 percent increase over 2001. The number of DOL investigations for complaints of FMLA violations also rose substantially.

Two of the most highly contested and often litigated issues focus on when an employee has given sufficient notice to the employer of the need for FMLA leave and what constitutes a serious health condition. Covered employers that must grapple with those issues on a day-to-day basis may find some assistance from recent court decisions that explore the FMLA’s boundaries, especially since certain underlying factual settings often repeat themselves and seem to be fertile ground for litigation. This paper will address several of those decisions, including a very recent decision from the Supreme Court, and offer tips for administering leave programs without violating the FMLA.

II. SERIOUS HEALTH CONDITION

An eligible employee may take FMLA leave for (i) the birth or adoption of a child or the placement of a foster child; (ii) to care for the employee’s family member who has a “serious health condition”; or (iii) the employee’s own “serious health condition.”[1] One of the most difficult tasks in complying with the FMLA is determining what constitutes a “serious health condition” sufficient to trigger FMLA-leave entitlement.

Much of the difficulty stems from the DOL’s complex definition of “serious health condition.” The FMLA defines a serious health condition as “an illness, injury, impairment, or physical or mental condition that involves:

(A)inpatient care in a hospital, hospice, or residential medical care facility; or

(B)continuing treatment by a health care provider.”[2]

According to the DOL, ordinary, commonplace health conditions are not “serious” for purposes of the FMLA unless complications arise. The examples listed in the regulations include colds, flu, headaches, and routine dental problems.[3] In addition, the FMLA regulations explain in detail the concept of “serious health conditions.” Such conditions include an illness, injury, impairment, or physical or mental condition that involves:

Inpatient CareC An overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with such inpatient care; and

Continuing treatment by a health care provider, which includesC

A period of incapacity of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves (A) treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by order of or on referral by a health care provider, or (B) treatment by a health care provider at least one time which results in a regimen of continuing treatment under the supervision of the health care provider.

Any period of incapacity due to pregnancy or for prenatal care;

Any period of incapacity or treatment therefrom due to a chronic serious health condition;

A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective, e.g., Alzheimer’s, stroke, terminal diseases;

Any absences to receive multiple treatments, including any period of recovery therefrom, by order of or on referral by a health care provider, either for restorative surgery or for a condition that likely would result in incapacity of more than three consecutive days in the absence of medical intervention or treatment with, e.g., chemotherapy, radiation, physical therapy, dialysis.[4]

A.Incapacity

The regulations describe incapacity as the inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment for the serious health condition, or recovery from that condition.[5] A number of courts have upheld the DOL’s requirement of a period of incapacity.[6]

A plain reading of this definition would seem to be that the multiple treatments or treatment plus a continuing regimen of treatment must occur during the period of incapacity since special provision is made for “any subsequent treatment or period of incapacity relating to the same condition” and no provision is made for any prior treatment or period of incapacity.[7] Thus, an employee who misses more than three consecutive days of work, but does not receive multiple treatments or treatment plus a regimen of continuing treatment during that period of absence, would not appear to have satisfied the definition.[8]

B.Treatment

Treatment includes examinations and evaluations to determine if a serious health condition exists.[9] A regimen of continuing treatment includes a course of prescription medicine or therapy requiring special equipment. The regulations provide that “[a] regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave. It does not include routine physical examinations or eye or dental examinations.”[10]

C.Chronic Serious Health Condition

A chronic serious health condition, for the purposes of the FMLA, is one that: (i) requires periodic visits or treatment by a health care provider or a nurse or physician’s assistant under the direct supervision of a health care provider; (ii) continues over an extended period of time; and (iii)may cause episodic rather than a continuing period of incapacity (such as asthma, diabetes, epilepsy).[11]

D.Cosmetic/Restorative Treatments

The definition of a serious health condition excludes cosmetic treatments, such as treatments for acne or plastic surgery, that do not require inpatient hospital care and involve no medical complications.[12] Restorative dental or plastic surgery after an injury or the removal of cancerous growths will be considered a serious health condition if the other elements of a serious health condition, as set forth in the statute and the regulations, are met.

E.Substance Abuse

An employee can take FMLA leave for treatment of substance abuse if the abuse is caused by a serious health condition as defined under the Act and regulations.[13] FMLA leave may be taken only for treatment provided by a health care provider or by a provider of health care services on referral by a health care provider.[14] On the other hand, absence because of the employee’s abuse of the substance C rather than for treatment C does not qualify for FMLA leave.[15]

III. NOTICE REQUIREMENTS

A.Employee Notice Requirements

1.Sufficiency of Employee’s Notice

An employee must give his or her employer notice of the need for FMLA leave. The employee’s notice must identify a qualifying reason under the FMLA and state the anticipated timing and duration of the leave.[16] The employee does not have to assert specific rights under the FMLA when providing the notice. In fact, the “employee need not . . . even mention the FMLA, but may only state that leave is needed for an expected birth or adoption.”[17] If the need for FMLA leave is unclear, the employer has the right to probe for additional information to clarify pertinent details of the leave to be taken.[18] But the employer’s duty to make further inquiry is only triggered if an employee gives sufficient notice of a medical need for the leave.[19]

An employee who needs intermittent leave or a reduced leave schedule for planned medical treatment or other medical reasons must consult with the employer to schedule the leave so as not to disrupt the employer’s operations, if possible.[20] If the employee fails to consult with the employer, the employer may waive the notice requirement or delay the onset of FMLA leave if the leave was clearly foreseeable 30 days in advance and the employee had actual notice of FMLA procedures and requirements (e.g., through the FMLA poster).[21] The employer also can temporarily transfer the employee to an alternative job, with equivalent pay and benefits, that accommodates recurring periods of leave better than the employee’s regular job.[22]

2.Foreseeable Leave

The employee must provide the employer with 30-days’ notice of leave, if practicable, of leave for the following reasons:

The expected birth of a child;

The expected placement of a child for adoption or foster care; or

The planned medical treatment for a serious health condition of the employee or a family member.[23]

The employer may require the employee to follow the employer’s usual and customary notice requirements and procedures for requesting leave.[24] For example, the employer may require written notice. Failure to comply with the employer’s internal leave procedures cannot delay or cancel FMLA leave if the employee gives timely notice as required under the FMLA.[25]

3.Unforeseeable Leave

If 30-days’ advance notice is not practicable, or if the need for leave is unforeseeable, the employee must give notice “as soon as practicable,” meaning as soon as possible and practical.[26] The employee or the employee’s spokesperson may provide verbal notice to the employer within one or two business days of the date the need for leave becomes known to the employee.[27]

B.Employer’s Response to Employee’s Notice

1.Confirmation of Eligibility

The FMLA regulations require the employer to confirm an employee’s eligibility for FMLA leave at the time leave is requested even though nothing in the text of the Act imposes this requirement. Moreover, according to the DOL:

If the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee’s eligibility. In the latter case, if the employer does not advise the employee whether the employee is eligible as soon as practicable (i.e., two business days absent extenuating circumstances) after the date employee eligibility is determined, the employee will have satisfied the notice requirements and the notice of leave is considered current and outstanding until the employer does advise. If the employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible. The employer may not, then, deny the leave. Where the employee does not give notice of the need for leave more than two business days prior to commencing leave, the employee will be deemed to be eligible if the employer fails to advise the employee that the employee is not eligible within two business days of receiving the employee’s notice.[28]

Several courts that have explicitly considered the issue have held the DOL exceeded its authority in promulgating this regulation and the regulation, therefore, is invalid.[29]

  1. Designation of Leave

The employer is responsible for designating leave as FMLA leave, based on information obtained directly from the employee or the employee’s spokesperson.[30] The designation should be made in writing in a language that is literate to the employee, and given to the employee within a reasonable time (two business days) following notice by the employee of the need for leave.[31] The employer may use the “Employer Response to Employee Request for Family or Medical Leave” (DOL optional form WH-381) to meet this requirement.

The DOL regulations also require an employer to notify an employee when paid leave will be substituted for unpaid leave or when paid leave will be counted as FMLA leave.[32] That notification must be made within two business days (i)of the time the employee gives notice or, (ii)if the employer does not initially have sufficient information to make the determination, of the time when the employer has sufficient information.[33] Failure to timely make the notification, according to a DOL regulation, prevents the employer from retroactively designating the leave as FMLA leave.[34] The employee enjoys the full protection of the Act during the time, but none of the absences preceding the notice may be counted against the twelve-week entitlement.[35] Several courts have rejected this regulation because it would have the effect of granting an employee more than the statutory twelve-week entitlement. Other courts, however, have approved the regulation.[36]

In Ragsdale v. Wolverine World Wide Inc.,[37]the Supreme Court recently resolved the split of authority in the lower courts by invalidating the DOL regulation. The Court declined to address the question of whether or not DOL had the authority to issue regulations requiring employers to tell individual employees about their rights under the law. But the court found that the penalty for not telling employees about their rights clashed with the rights provided by the FMLA and exceeded DOL’s authority. The Court reasoned that the regulation impermissibly created an irrebuttable presumption that an employee not notified that leave would count as FMLA leave was entitled to 12 weeks of leave without requiring the employee to demonstrate that he or she was harmed by the lack of notice. Siding with the lower courts that had rejected the regulation, the Supreme Court found that the penalty was incompatible with the FMLA’s remedial mechanism, which requires an employee to prove that the employer violated the Act by interfering with her rights and that she was somehow harmed by the violation. Here, Ragsdale never showed that she would have taken less leave or intermittent leave if she had received the required notice, the Court reasoned. The Court further found that the regulation was at odds with a statement in the law providing that it was not intended to discourage employers from adopting more generous leave policies. Congress knew that “technical rules and burdensome administrative requirements” might discourage employers from adopting polices that varied from the basic federal requirements, the Court said. But it found the regulation’s “severe and across-the-board penalty could cause employers to discontinue these voluntary programs.”

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Many employment lawyers and commentators believe the Wolverine decision will result in more litigation as employees and employers wrangle over the appropriate penalty for an employer’s failure to tell a worker taking FMLA leave that the leave will count against the 12 weeks guaranteed by the FMLA. This is because the Court emphasized that the regulation was unfair in that it did not require a plaintiff to demonstrate that he or she had been harmed by the employer’s failure to give notice of the FMLA designation. The decision seems to indicate that if the employee could prove such harm, he or she could be entitled to the relief contemplated by the regulation. Forcing plaintiffs to prove such harm will create more litigation. As a result, employers still should inform employees about their FMLA rights and to tell them when their leave is being counted against the FMLA entitlement. In addition, employers retroactively designating leave as FMLA leave should check with legal counsel to ensure that an employee’s rights are not being abridged.

3.Contents of Designation

The employer’s notice of designation must specify the employer’s expectations and the employee’s obligations during the leave period, and the potential consequences of the employee’s failure to meet his or her responsibilities.[38] The notice must specify that the leave will be counted against the employee’s annual FMLA leave entitlement, and inform the employee of:

His or her responsibility to furnish medical certification and the consequences of failing to do so;

His or her right to elect to use accrued paid leave for unpaid FMLA leave, whether the employer will require the use of paid leave, and the conditions related to using paid leave;

His or her responsibility to make co-premium payments for maintaining group health insurance and the arrangement for making such payments;