Recent Court Rulings
Understanding, interpreting and administering the provisions of the Family and Medical Leave Act (FMLA) continues to be a challenge for employers and the courts. Recurring issues include employee eligibility for leave, determination of the "essential functions" of a job, determining when an illness becomes a serious health condition, and reinstatement after leave. Recently, courts have issued rulings on the following:
- Employee Determined Eligible for FMLA Merely Because of Employment Contract
In May 2001, the 7th Circuit Court of Appeals decided that, although the employer was not covered under the FMLA because it had fewer than 50 employees within 75 miles of an employee's work location, the employee would still be protected under FMLA because the employer had incorporated the FMLA into her employment contract. By doing this, the employer made an enforceable contract and had to reinstate an employee returning from maternity leave into the position she held before the leave.
- Job Location is Not an Essential Function of an Employee's Position
The 8th Circuit Court of Appeals recently held that a janitor who worked at one school in the morning and another school in the afternoon, could take FMLA leave from one location for serious depression related to that school, despite his ability to work at the other school.
In another decision by the same court, in a case where a woman pursued a different job while she was on FMLA leave from her original employer, the court said she would still be considered unable to perform the essential functions of her job. This means that even if an employee is unable to work in his or her current job due to a serious health condition, that is enough to show that the employee is incapacitated, even if that job is the only one that the employee is unable to perform.
Despite the fact that flu is not considered a serious health condition, the 4th Circuit Court of Appeals recently found that, in a case where an employee who had the flu visited a doctor for a second time for blood tests and a physical exam, qualified for a serious health condition. This is because two visits to a physician falls under the definition of continued treatment, as required under the provision of the FMLA regulations defining serious health condition.
- Inability to Perform Position Means Employer Relieved of FMLA Obligations
A recent court of appeals decision stated that an employer was not obligated to give additional weeks of leave to an employee who was unable to perform the duties of his original position because his condition would not change after the additional leave.
Tips for Employers
The checklist below will help you to assess your compliance of your current practices and policies as they apply to FMLA.
- As soon as you learn of an employee's need for FMLA leave, be sure to contact your FMLA expert to quickly determine if the leave is FMLA-qualifying. Remember, that the employer has only two business days to provide the employee with notice that it is considering the leave FMLA leave.
- Make sure you have an FMLA tracking system in place. You might begin by keeping an attendance calendar for each employee.
- Ensure that the required notices are posted and that your employees are informed.
- Remember that the employer can ask for a medical certification from the employee for their own serious health condition and when the employee needs time off to care for a child, parent or spouse with a serious health condition.
- Examine policies and practices with respect to the substitution of paid leave for unpaid leave and the accrual of employer-provided leave.
- Employees may not be penalized under "no-fault" attendance policies for taking FMLA leave.
Because requirements under the Family and Medical Leave Act are constantly being reviewed by the courts, it is important to stay updated on the most recent developments. Following the current cases and the tips listed above will help you to avoid costly mistakes and ensure that your FMLA policies are accurate and thorough.
For more information, please call (414) 423-1330 or e-mail educational services.
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