ALI-ABA S CURRENT DEVELOPMENTS IN EMPLOYMENT LAW. July 28-30, Santa Fe, New Mexico

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1 ATTORNEYS AT LAW TH STREET, NW, SUITE 700 WASHINGTON, DC FAX: EBGLAW.COM FRANK C. MORRIS, JR. TEL: FAX: MINH N. VU TEL: FAX: ALI-ABA S CURRENT DEVELOPMENTS IN EMPLOYMENT LAW July 28-30, 2005 Santa Fe, New Mexico SELECTED DEVELOPMENTS UNDER THE FAMILY AND MEDICAL LEAVE ACT OF 1993 by Frank C. Morris, Jr. Minh N. Vu EPSTEIN BECKER & GREEN, P.C. Washington, D.C.

2 I. SERIOUS HEALTH CONDITION.1 A. Definition... 1 B. Judicial Construction... 1 II. CARE FOR FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION.. 3 III. BIRTH OF CHILD.. 5 IV. LEAVE REQUEST. 6 V. CERTIFICATION OF NEED FOR LEAVE.11 VI. EMPLOYEE ELIGIBILITY..12 A. One Year Employment and Hours Worked Requirement B. Calculation of Annual Twelve-Week Period C. Definition of Employee D. Notice to Employee E. Substitution of Paid Leave F. Intermittent/Reduced Schedule Leave VII. RETURN TO WORK 19 VIII. KEY EMPLOYEE. 19 IX. ATTENDANCE POLICIES.. 19 X. DISCRIMINATION.. 19 XI. RETALIATION. 19 XII. DAMAGES 19 XIII. INDIVIDUAL LIABILITY XIV. FEDERAL JURISDICTION. 19 XV. ELEVENTH AMENDMENT 19 XVI. RIGHT TO JURY TRIAL. 19 XVII. LEAVE POLICIES 19 XVIII. EFFECT ON BONUSES XIX. STATUTE OF LIMITATIONS. 19 XX. WAIVERS. 19

3 DEVELOPMENTS UNDER THE FAMILY AND MEDICAL LEAVE ACT OF 1993 by Frank C. Morris, Jr. Minh N. Vu* Epstein Becker & Green, P.C. I. SERIOUS HEALTH CONDITION A. Definition An eligible employee (see III, below) may take up to twelve weeks leave in a twelve-month period for the employee s serious health condition, which is defined as: illness, injury, impairment or mental condition that involves (1) inpatient care in a hospital, hospice or residential medical care facility; or (2) continuing treatment by a health care provider. B. Judicial Construction The Eighth Circuit has fashioned the following elements which a plaintiff must establish to prove that she has a serious health condition under the FMLA: 1) she had a period of incapacity requiring absence from work; 2) incapacity exceeded three days; and 3) she received continuing treatment by a healthcare provider during that period. Rankin v. Seagate Techs., Inc., 246 F.3d 1145 (8th Cir.), reh g and reh g en banc denied (June 1, 2001). In Russell v. North Broward Hospital, 346 F.3d 1355, 1344 (11th Cir. 2003), the Eleventh Circuit interpreted the FMLA regulations (29 C.F.R ) as requiring incapacity for three entire days, not partial days. Id. at The court also upheld the validity of the regulation as a permissible construction of the statute. Id. at Courts will apply an individualized, fact-based analysis to determine if an employee s health condition meets statutory criteria: Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001). The Court held that while ailments such as the flu ordinarily do not qualify for FMLA leave, these ailments are not automatically excluded from coverage when they meet the objective criteria for a serious health condition. Mr. Morris represents and counsels employers in all matters concerning the workplace and is Director of the Employment Law Department in Washington, D.C. for Epstein Becker & Green, P.C., th Street, N.W., Suite 700, Washington, D.C , (202) , fmorris@ebglaw.com. Ms. Vu is also a partner in the Employment Law Department in the Washington, D.C. office, mvu@ebglaw.com, and counsels employers on workplace issues. They are both directors of the Firm s Disability Practice Group which provides advice and representation to employers, retailers, builders, owners, landlords, property managers, architects, state and local governments, and others under all titles of the ADA.

4 Rankin v. Seagate Techs., Inc., 246 F.3d 1145 (8th Cir. 2001), reh g and reh g en banc denied (June 1, 2001). The Court held that genuine issues of material fact with respect to whether an employee had serious health condition precluded summary judgment for the employer. Issues included whether the employee, who suffered from vomiting, coughing, congestion and sleeplessness had a period of incapacity which exceeded three days and whether she received continuing treatment by a health care provider. The only evidence establishing the employee s incapacity was her own testimony. The District Court had concluded that the employee could not establish continuing treatment because she was not prescribed an antibiotic on her first doctor s visit and only consulted a doctor for the second time eight days later, after she was terminated. The Eighth Circuit held that the fact an employee is sufficiently ill to see a physician two times in a period of just a few days is all that the FMLA requires to establish continuing treatment. Stekloff v. St. John s Mercy Health Sys., 218 F.3d 858 (8th Cir. 2000). The Court held that the inability to perform a job, which is the major criterion for a serious health condition, references the employee s present job, not another one. Therefore, a nurse who was unable to perform her current job due to emotional distress triggered by a conflict with her supervisor, and obtained a physician s note substantiating that fact, was still protected under FMLA, despite the fact that she attended an orientation at a second, part-time job. The Court noted the distinction between the ADA, which requires impairment of a broad range of jobs in order to demonstrate a disability, and FMLA, which requires only the inability to perform one s present job for more than three days, in order to demonstrate a serious health condition. Caldwell v. Holland of Texas Inc., 208 F.3d 671 (8th Cir. 2000) (holding that there was a material issue of fact whether the plaintiff s three-year-old son s ear condition constituted a serious health condition; plaintiff presented evidence that son was incapacitated from his normal activities for more than three days and required continuing care during that period). Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190 (8th Cir. 2000) (employee s shoulder injury found not to be a serious health condition because employee s physician did not restrict him from returning to work and did not impose any work-related restrictions). Sloop v. ABTCO, Inc., 178 F.3d 1285, No , 1999 WL (4th Cir. 1999) (unpublished opinion), cert. denied, 528 U.S. 930 (1999). An employee claimed protection under the FMLA for leave taken to enter an alcohol detoxification center. The employee was involuntarily committed by his wife to the center the day following the Fourth of July holiday. The wife notified the defendant and requested leave, however she was notified two days later that plaintiff had been terminated effective the July 5 th. The Court first cited the applicable regulation, which provides that substance abuse may qualify as a serious health condition if the general criteria are met, but that, while absences necessary for treatment of the abuse are covered, absences caused by the abuse itself are not. Id. at *4-6, citing 29 C.F.R (d). Noting that the plaintiff had a blood alcohol level of.05 when admitted to detox at 2:00 p.m. on July 5 th, the court held that his absence from work at 7:00 that morning was due to his drinking and not for treatment. Therefore, the absence was not protected under FMLA and he was properly terminated. Id. at *8. 2

5 Stiefel v. Allied Domecq Spirits & Wine U.S.A., Inc., 184 F. Supp. 2d 886 (W.D. Ark. 2002). Plaintiff presented no specific facts to show that a two-day absence in January and a one-day absence in July were attributable to a miscarriage the previous September or were otherwise attributable to a serious medical condition. The Court granted summary judgment to the employer on the plaintiff s claim of wrongful discharge, noting that the plaintiff was not protected against disciplinary action related to absences that were not related to a serious health condition. D Amico v. Compass Group USA, Inc., 198 F. Supp. 2d 18 (D. Mass. 2002), aff d 52 Fed. Appx. 524, 2002 WL (1st Cir. 2002). The District Court held that an employee indeed had a serious medical condition as required under the FMLA where he passed out at work, subsequently visited the doctor once and was prescribed medication for depression, even though he may not have ever taken the medication. The Court noted that a patient s failure to cooperate with a prescribed regimen of care does not invalidate a medical opinion that his condition warranted treatment. Compare Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587 (D. Md. 2000), aff d, 230 F.3d 1354 (4th Cir. 2000). Belgrave v. City of New York, No. 95-CV-1507, 1999 WL (E.D.N.Y. Aug. 31, 1999) (employee who alleged he was unable to work for more than three days due to pulled hamstring and saw doctor four times sufficiently alleged he had a serious health condition), aff d, 216 F.3d 1071 (2d Cir. 2000) (TABLE). Price v. Marathon Cheese Corp., 119 F.3d 330 (5th Cir. 1997) (holding carpal tunnel syndrome did not rise to the level of a serious health condition where employee did not receive inpatient care, was not absent for three or more days, and diagnosis was mild to moderate impairment of right arm). Price v. City of Ft. Wayne, 117 F.3d 1022 (7th Cir. 1997) (holding that various ailments may, taken together, constitute serious medical condition even if none of them qualify individually). Boyce v. New York City Mission Soc y, 963 F. Supp. 290 (S.D.N.Y. 1997) (shortness of breath and chest pains insufficient where no indication of prescribed course of medication or overall incapacitation). II. CARE FOR FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION The FMLA also entitles an employee to take leave in order to care for a spouse, parent, son or daughter with a serious health condition. The FMLA definition of son or daughter distinguishes between those who are under 18 years of age and those who are older. 29 U.S.C. 2611(12). Sons and daughters 18 years or older are included only if they are incapable of selfcare because of a mental or physical disability. FMLA s regulations define disability by expressly incorporating the EEOC s regulations under the ADA. See 29 C.F.R (c)(2). Perry v. Troy, 353 F.3d 510, (6th Cir. 2003). The Sixth Circuit held that an employee s son s attention deficit disorder and attention deficit hyperactivity disorder which required medication and monitoring by a doctor every six months was not a serious medical 3