Legal Bulletins

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FMLA Update December 2003

The Department of Labor’s Wage-Hour Division reported that the number of FMLA claims increased slightly in the fiscal year which ended September 30, 2003.  1,567 of the 3,565 FMLA claims filed in the fiscal year were based on a termination of employment.  Violations were found in 1,654 cases, resulting in the payment by employers of $2.4 million in back wages.
Almost one-half of the FMLA charges are found to be meritorious, which is in stark contrast to the EEOC’s data for claims under Title VII, the ADA, and the ADEA.  Only 7.2% of the 84,442 charges filed with the EEOC during the 2002 fiscal year resulted in a “reasonable cause” finding and another 12.8% of the charges were closed via settlement or a “withdrawal with benefits”.  This discrepancy may be attributable to the apparent unfamiliarity of many employers with the requirements of the FMLA and the DOL regulations. 
The federal Courts of Appeals continue to issue decisions defining employers’ obligations under the FMLA.  For example: 
The Fourth Circuit (which includes Maryland) held that an employee’s discharge violated the FMLA.  The employee (who was hired on June 1, 1999) left work due to a serious health condition on May 19, 2000.  She was approved for short term disability leave through May 27 and she was considered to be on an unexcused absence from May 28 through June 9.  Shortly thereafter, she was fired when she could not return to work.  The employee was told that she was not eligible for FMLA leave because she had not worked for the company for one year on the date her short term disability leave began.  The Court found that the employer used the wrong date in determining her eligibility for FMLA leave.  While the Court agreed that the determination of whether an employee has been employed for at least twelve months is made as of the date the leave commences, the Court defined “leave” as an <b>authorized</b> absence.  The Court ruled she was eligible for FMLA protection because her initial period of leave had ended on May 27 and she was an employee who had completed twelve months of service at the time she requested additional unpaid leave on June 9, 2000.  The Court noted that the employer could have lawfully terminated her during the period of her unauthorized absence.  The Court affirmed the jury’s award to her of more than $91,000.  This case shows the importance of being careful in characterizing absences as leave and in determining eligibility for FMLA leave.
The Seventh Circuit ruled that a street and sanitation superintendent was lawfully terminated for poor performance on the day he returned from FMLA leave.  While he was out on leave, his replacement did a very good job.  The employer terminated the superintendent after seeing how much better his replacement performed.  The employee argued that it was improper for the employer to decide to terminate him while he was on leave.  The Court held that it is not a violation of the FMLA for an employer to dismiss an employee for poor performance, regardless of when the employer came to the decision.
The Eleventh Circuit found that an employee who worked on partial days after being injured in a slip and fall accident was not entitled to FMLA protection because she did not have “a serious health condition” as required to qualify for FMLA leave.  Under the FMLA, a  “serious health condition” must result in more than three consecutive calendar days of incapacity or meet one of the other tests (such as involving continuing treatment for a chronic serious condition or inpatient care resulting in an overnight stay in a hospital).  The Court ruled that the employee had to be incapacitated for more than three full calendar days (based on the common midnight to midnight definition of “day”) in order to have a serious health condition and that days of partial incapacity are not taken into consideration for this purpose.
To reduce  exposure to liability under the FMLA, employers should review their policies and practices.  FMLA claims often allege that an employer violated the law by failing to comply with the notice provisions set forth in the statute and the DOL regulations or by basing disciplinary action (completely or in part) on an absence protected under the FMLA. 




November 30, 2003




Bacharach, Charles R.
Kellner, Robert C.