Q: Can an employee take FMLA leave due to a cold or the flu? 

A: Yes, if it otherwise meets the definition of a “serious health condition.”

This question is confusing to many employers, and even some folks who hold themselves out FMLA experts. The source of this confusion is a misleading passage in the FMLA rules:

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 diseases, etc. are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.

Reading this, one might assume that when an employee calls in sick with the flu, there’s no need to worry about FMLA leave. That, unfortunately, is the wrong answer.

The passage above is included in the FMLA rules as an example only. It in no way limits the definition of “serious health condition.” If an FMLA-eligible employee has a bad case of the flu, is incapacitated for more than three full consecutive days, and goes to the doctor and receives a prescription for antibiotics, that employee is entitled to FMLA leave. The same is true regardless of the condition, whether it is a cold or sinus infection or ear ache. If the condition meets the criteria in the rules, then it is a “serious health condition” and the FMLA applies.

This conclusion leads to an obvious question: do employers need to go through the whole FMLA process every time an employee comes down with the sniffles? Not quite. For more on that, check out FMLA Insights Podcast No. 3.

Is the fifth time the charm?  On July 30, 2010, U.S. Senator Richard Durbin introduced the Family and Medical Leave Inclusion Act, which would broaden the Family and Medical Leave Act to permit leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, or grandparent who has a serious health condition.  S.B. 3680 (pdf) is nearly identical to H.B. 2132, which has been pending in the U.S. House of Representatives, and that (based on our count) has been introduced in the House on four occasions.  What’s notable about S.B. 3680, of course, is that it now is on track to be considered by the Senate for the first time. 

Does this signal renewed support for a fairly drastic expansion of the FMLA (i.e., extension of eligiblity to domestic partners, adult children, siblings and grandparents)?  Too soon to tell, given that Sen. Durbin is the only Senate sponsor right now.  However, the Senator claims to have momentum on his side.  In remarks introducing the legislation and citing the Human Rights Campaign, Senator Durbin suggested (pdf) that federally mandated family and medical leave protections keep up with 461 major American corporations, nine states, and the District of Columbia, all of which currently provide varying levels of FMLA benefits to same-sex partners.

The FMLA Inclusion Act is one of several bills pending in Congress that would further expand the FMLA.  Despite the number, none has been able to gain any momentum in the 111th Congress.

survey pic.jpgOn the campaign trail, then candidate Barack Obama promised to work aggressively on work-family balance if he was elected president.  In doing so, he clearly signaled a movement toward pursuing additional rights for employees to permit them to better balance their workplace duties and their personal and family lives.  This “movement,” however, has been stalled by the health care debate, the conflict in Iraq, and the Gulf Oil mess.

Yesterday, the Administration signaled that its commitment to work-family balance is back on track.

Yesterday, Vice President Joe Biden held a Middle Class Task Force event on solutions for families balancing both work and caring for family, during which he announced various initiatives to reinforce the Administration’s priorities in this area.

Per the Task Force’s recommendations as to family and medical leave, the Department of Labor will conduct a Family and Medical Leave Act survey in 2011 to “provide insight into how families use leave.”  In addition to collecting data on current family workplace policies and practices, the DOL hopes to gather “more information on parental leave, child care responsibilities, family leave insurance program usage, and other issues related to the intersection of work and family responsibilities.”  The DOL also intends to host a series of “National Dialogue on Workplace Flexibility” forums across the country.  Over the past year, the DOL has sent mixed signals as to whether there will be major FMLA regulatory change later this year.  However, a 2011 FMLA survey may very well forecast substantial regulatory changes next year.

Also announced in yesterday’s Task Force event, the Administration indicated that the EEOC and DOL would coordinate enforcement and data collection activities to better crack down on wage violations and systemic pay discrimination practices.  This is a notable development, since it has been apparent that EEOC or DOL very rarely shares data with the other or coordinates strategy on enforcement priorities.

For employers, it pays to listen closely to the reason for which an employee requests time off, since the reason may not always be covered by the FMLA.  Kind of like occasions when the employee tells you he needs time off to clean his mother’s flooded basement.

Take Joe Lane, a medical technologist for Pontiac Osteopathic Hospital.  Joe, who lived with his mother, sought and was granted FMLA intermittent FMLA leave for six months to care for his mom, who suffered from diabetes, high blood pressure, weight loss and arthritis.  He needed leave from time to time to provide her food and transport her to doctors’ appointments, which he did without issue for the next four months.

For Joe, when it rains, it pours. Literally. Right into his mother’s basement. Joe was absent for four consecutive days and, in violation of the Hospital’s personnel policies, he failed to call in his absences. Thereafter, he informed the Hospital that he would need additional time off to clean up flooding in his mom’s basement. He claimed that the “flood cleaning days” should be excused because his mother had hepatitis and the stagnant water was a “breeding ground” for the disease. The Hospital disagreed and fired him.

At that moment, Joe’s FMLA claims went down the drain.

Continue Reading Cleaning Up Mom’s Flooded Basement Not Protected by FMLA

Managing long-term intermittent leave has long been one of the central problems for employers administering FMLA leave. Particularly problematic is the employee who presents a certification suggesting that he or she will need unscheduled leave with little or no notice to the employer over a period of months or years based upon self-diagnosed, unverifiable symptoms such as pain or fatigue. A recent decision by the 8th Circuit Court of Appeals suggests that, at least in some cases, such a leave request need not be granted because the need for frequent, unscheduled, unpredictable leave over an extended period of time can render an employee unqualified for duty. Wisbey v. City of Lincoln, Neb.

The Facts

Charlene Wisbey worked as an emergency dispatcher for the City of Lincoln, Nebraska. Due to the nature of her position, the City expected her to “function accurately while working under considerable pressure” and to “think and act quickly and calmly in emergency situations.”

From January through February 2007, Wisbey used a significant amount of sick leave due to a respiratory infection. As Wisbey had already exhausted her sick leave, the City issued her a written warning for excessive absences and recommended that she apply for intermittent FMLA leave. In February 2007, Wisbey took that advice, and submitted an application for intermittent FMLA leave based upon depression and anxiety, stating in her application that she had a serious health condition that rendered her “unable to perform the essential functions of her job. She submitted a medical certification from her physician, stating that she suffered from recurring depression and anxiety, which interfered with her sleep, energy level, motivation, and concentration. The doctor stated that she would require intermittent leave “over the next 6 months or longer.” He left blank the “anticipated return to work date.”

In light of the certification, the City questioned whether Wisbey was able to adequately perform her job as an emergency dispatcher. The City scheduled Wisbey for a fitness for duty examination with a psychiatrist, Dr. Chesen. Dr. Chesen submitted a three-page report of his findings, stating that Wisbey suffered from “chronic relapsing depression” that “intermittently interferes with her ability to function at full capacity at work vis-a-vis tiredness,” and that she was not “fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work.”

The City subsequently placed Wisbey on administrative leave with pay and scheduled a Personnel Board hearing. At the hearing, Wisbey testified that her fatigue did not interfere with her work, because she stayed home when she felt tired. Following the hearing, the City terminated Wisbey’s employment.

The Lawsuit

Wisbey filed suit against the City in state court, and the City removed her case to the U.S. District Court for the District of Nebraska. In her Complaint, Wisbey alleged that the City violated the ADA and FMLA by terminating her employment. The District Court granted summary judgment for the City, and Wisbey appealed.

Affirming, the Court of Appeals rejected Wisbey’s ADA claim, finding that she “was terminated because she was not ‘fit for duty,’ as reported by Dr. Chesen, and not based on any myths or stereotypes about being disabled.”

With respect to the FMLA, the Court explained that the Act supports two distinct types of claim, for “interference” and “retaliation.” To establish an interference claim, an employee need only show that an employer denied some benefit to which the employee was entitled under the FMLA. The court held that Wisbey could not maintain an interference claim because she was never denied any FMLA leave. Going further, the court held that even if Wisbey’s FMLA requests had been denied, the FMLA did not give her the right to FMLA leave because she requested “intermitent leave” for “six months or longer.” Quoting a 2005 decision in Spangler v. Fed. Home Loan Banke of Des Moines, the Court stated:

Even had Wisbey’s FMLA requests been denied, the FMLA does not provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide occupational qualification….

As for her retaliation claim, the Court again found that the City discharged Wisbey not because she exercised any rights under the FMLA, but because she was unfit for duty.

Insights for Employers

This case should come as a breath of fresh air to employers who have dealt with employees who treat long-term intermittent FMLA leave as an invitation to skip work whenever they feel like it, without notice or further explanation. However, some may argue that the 8th Circuit went too far in suggesting that an employee has no right to FMLA leave where she requests “intermittent leave” for a period of “six months or longer.” Indeed, the FMLA plainly allows for intermittent leave over extended periods of time. 

What employers can take away from Wisbey is that, particularly for safety-sensitive positions and jobs where regular attendance is a crucial requirement, there may be situations where an employee’s serious health condition renders the employee unfit for duty, regardless of the availability of leave under the FMLA. In such cases, it may be permissible for an employer to terminate an employee’s employment without first allowing an employee to exhaust all available FMLA leave. However, employers should be cautious about exercising that option, as other courts faced with different factual scenarios may be less friendly to the unfit-for-duty argument than the 8th Circuit was in Wisbey.

World Cup soccer ball pic.jpgA couple weeks ago, as I was preparing a witness for his deposition (in a Title VII and FMLA case), it dawned on both of us that his deposition would take place mere hours after the deciding Game 6 of the Stanley Cup Playoffs.  Upon this realization, his face grew a bit pale, and he began wondering out loud whether he would be in the best shape for a deposition the day after a Chicago Blackhawks victory.  [Insert here: visions of a late night at the local pub.]

No worries — both my client and the Blackhawks came out on top.  However, the more I considered the above exchange, the more I wondered whether this scenario raises a common issue for employers as they administer FMLA leave — Do major sporting events, such as the Stanley Cup and ongoing World Cup, invite widespread abuse of FMLA leave?

Continue Reading He Shoots . . . and Misses! Does the World Cup Invite FMLA Abuse?

On June 22, 2010, the U.S. Department of Labor issued an Administrator Interpretation (.pdf) to clarify the definition of a “son or daughter” under the FMLA to ensure that an employee who seeks time off work to care for a child receives FMLA leave regardless of the employee’s legal or biological relationship with the child.  Although the DOL interpretation arguably does not change existing law, many consider it a huge win for nontraditional families, including families in the lesbian-gay-bisexual-transgender (LGBT) community who, the DOL asserts, “often in the past have been denied leave to care for their loved ones.”

Continue Reading DOL Permits FMLA Leave for Gay Parents and Others Caring For a Child

Gay and lesbian employees in the Illinois Treasurer’s office who are in a committed relationship will enjoy the same FMLA benefits as married employees under an executive order signed by state treasurer (and U.S. Senate candidate) Alexi Giannoulias Sunday.  As a result, these employees will have the same family and medical leave benefits to care for their domestic partner when they suffer from a serious health condition and will be allowed to take time off to have or adopt children.

Continue Reading Illinois State Treasurer Extends FMLA Benefits to Employees with Same-Sex Partners

Have you been concerned that the US Department of Labor in an Obama Administration might reverse many of the “employer-friendly” FMLA regulations that took effect in January 2009?  According to the DOL, however, major changes to the regulations is unlikely to happen any time soon.

As first reported by Thompson Publishing, at a DOL stakeholders’ forum held on May 21, 2010, Michael Smythe, chief of the Regulatory Analysis Branch at the DOL, indicated that the DOL’s 2010 regulatory update to the FMLA (which currently is scheduled for November) will focus “narrowly” on:

  1. The qualifying exigency and military caregiver leave amendments; and
  2. The new airline flight crew rules.

These comments appear to reign in earlier statements made in DOL’s semiannual regulatory agenda (pdf), at which time the DOL indicated an interest in reviewing all of the new FMLA regulations, which took effect in January 2009.  These comments left employers wondering whether the DOL would roll back some or all of the perceived “employer-friendly” regulations.


What will the DOL’s FMLA Regulatory update likely cover?

According to the DOL, the regulatory update apparently will be limited to regulations that interpret:

  1. The 2010 Defense Authorization Bill, which expanded the manner in which employees can take leave due to “qualifying exigencies” arising from family members’ military service, and to care for family members injured in the course of military service; and
  2. The Airline Flight Crew Technical Corrections Act, which makes it easier for flight crews to qualify for FMLA leave by changing the manner in which hours of service requirements are met to account for the airline industry’s unique timekeeping methods.

However, the DOL’s position on the FMLA regulatory agenda could change on a moment’s notice, and it does not take into account the number of bills pending in Congress that would considerably expand the reach of the FMLA.  See our earlier post for an update on FMLA-related bills currently pending in Congress and their status.

Last fall, Congress passed and the President signed several amendments to the Family and Medical Leave Act, including an expansion of military leave (2010 Defense Department Authorization Bill) and a relaxation of the hours requirement for airline employees (Airline Flight Crew Technical Corrections Act).

Congress’ willingness to amend portions of the FMLA in 2009 may be a sign of things to come in 2010.  The above FMLA legislation constitutes just a fraction of the FMLA bills under consideration in Congress.  Click on the link below for a summary of FMLA legislation currently pending in Congress as well as its status.

  • Family Fairness Act (H.R. 389): Eliminates the requirement under the FMLA that the employee have worked at least 1,250 hours during the 12-month period before the leave begins.
  • Federal Employees Paid Parental Leave Act (H.R. 626): Provides that 4 of the 12 weeks of parental leave available to federal employees under the FMLA would be paid leave.
  • FMLA Enhancement Act (H.R. 824): Amends the FMLA to allow employees to take time off from work to participate in children’s or grandchildren’s school or community organization activities, attend regular medical/dental appointments, or attend to the needs of an elderly relative, such as visiting them in a nursing home; expands FMLA coverage to employers with 25 or more employees.
  • Family Leave Insurance Act (H.R. 1723): Creates an insurance program, funded through employer and employee payroll tax contributions, to provide up to 12 weeks of paid FMLA leave benefits.
  • FMLA Inclusion Act (H.R. 2132): Amends the FMLA to allow leave to care for a same-sex spouse, domestic partner, parent-in-law, child of a domestic partner, adult child, sibling, or grandparent with a serious health condition.
  • FMLA Restoration Act (H.R. 2161): Repeals most of the employer-friendly provisions of the recent FMLA amendments, while leaving in place the new and more onerous requirements on employers.
  • Family Income to Respond to Significant Transitions Act, or “FIRST Act” (H.R. 2339): Awards grants to states to pay portion of the cost of carrying out programs that assist families; provides wage replacement for eligible individuals taking FMLA leave or leave provided under state or local law.
  • Healthy Families Act (H.R. 2460): Requires covered employers to provide employees up to 56 hours paid sick leave per year.
  • Domestic Leave Violence Act (H.R. 2515): Amends the FMLA to permit leave for employees addressing domestic violence, sexual assault, or stalking, and their effects, and to care for a family member addressing domestic violence, sexual assault or stalking, and their effects.
  • Paid Vacation Act (H.R. 2564): Requires employers to provide employees one week of paid vacation during each 12-month period and two weeks of paid vacation beginning on the employee’s first anniversary of employment.
  • Balancing Act of 2009 (H.R. 3047): Employers covered if they employ 25 or more; borrows from Family Leave Insurance Act to provide employees 12 weeks of unpaid FMLA leave; adopts FMLA Enhancement Act to provide for expanded uses of leave; permits leave to address acts of domestic violence, sexual assault and stalking; incorporates the Healthy Families Act.