The federal Family and Medical Leave Act of 1993 was enacted to allow employees to take unpaid leaves of absence without risking their job security. The statute permits eligible employees to take such leave if they or a member of their immediate family experiences a “serious health condition.”
In recent years, two aspects of the FMLA have become a source of increasing concern for employers: determining what is a “serious health condition” within the meaning of the statute, and defining an “eligible employee.” Because these terms have not been clearly defined, a potential for abuse exists.
Some employers have noted a surge in employees claiming FMLA leave on Fridays and Mondays in the summer. Others complain that workers are claiming FMLA leave even when they have only minor ailments, such as a cough or cold.
What does the FMLA mean by a “serious health condition”? Courts have offered inconsistent guidance. In general, judges have found that unless complications arise, the common cold, routine dental or orthodontia problems, acne treatments, plastic surgery, non-migraine headaches, earaches, upset stomach and minor ulcers do not qualify.
On the other hand, the qualification “unless complications arise” implies that any of these ailments could qualify as a serious health condition supporting FMLA leave if an individual is severely affected.
Of course, identifying complications that are severe enough to support FMLA leave can itself be a difficult endeavor and can lead to seemingly inconsistent results. For example, courts have disagreed on whether symptoms associated with the flu constitute a serious health condition within the meaning of the FMLA.
Another area that has created uncertainty is what constitutes an “eligible employee.” The FMLA defines an eligible employee as someone who has been employed “for at least 12 months by the employer with respect to whom leave is requested” and “for at least 1,250 hours of service with such employer during the previous 12-month period.”
Recently, in Rucker v. Lee Holding Co., the U.S. Court of Appeals for the First Circuit considered whether an employee has to work 12 months consecutively to be eligible for leave. The plaintiff worked at a car dealership for five years, had a five-year break in service, and returned and worked more than 1,250 hours over about seven months. After he missed 13 days of work because of a ruptured disc, he was terminated.
The First Circuit found that the employee was eligible for coverage under the FMLA based on his five years of prior service, thus interpreting FMLA eligibility quite broadly.
Employees have not hesitated to place FMLA disputes into court. On average, more than 2,500 FMLA-related complaints are filed each year, according to the U.S. Department of Labor; many have the potential to result in significant judgments against the employer. In one extreme case, a jury returned a verdict of $11.65 million for an employee who claimed that his employer retaliated against him for taking FMLA leave to care for his parents.
Last Dec. 1, the Department of Labor announced that it is seeking information and public comments regarding the effectiveness of the FMLA. This provides an ideal opportunity for concerned employers and employees to provide input on how to improve the application of the FMLA. The statute’s use of ambiguous terms such as “serious health condition” and “eligible employee” creates a potential for abuse and litigation. Clarification of the rules for FMLA leave will benefit both employers and employees. Employers will understand more clearly the circumstances under which leave must be granted, and employees will know with greater certainty when their jobs will be protected.
Mark A. Pogue is a partner in the litigation and labor & employment practice groups of Edwards Angell Palmer & Dodge. He can be reached at mpogue@eapdlaw.com.
Erika C. Lazar is an associate in the firm's litigation group. She can be reached at elazar@eapdlaw.com.
