The Latest Focus on the Fuzzy FMLA - Family and Medical Leave Act - Interview

Now that Bill Clinton has left the building (that being the White House), it's only fitting to take another look at part of his legacy, the Family and Medical Leave Act, Of course, it's also appropriate because the FMLA continues to be a serious legal burr--unevenly interpreted, broadly worded, and difficult to administer. Tim Bland, an attorney in the Memphis office of employment-law firm Ford Harrison, LLP, answers sticky questions about this tricky law.

There's continual debate on the definition of a "serious health condition"-how should employers interpret it?

There have been some Department of Labor opinions indicating they use a fairly loose standard on when an employee can be deemed to suffer a "serious health condition" under the FMLA. Even if an employee has just a cold or the flu, and goes to a doctor and gets a prescription, that can be considered a serious health condition qualifying her for FMLA leave.

Does the doctor have to specifically state that the illness requires an FMLA leave?

There's a certification form the employer can give the employee that requires a doctor to specifically certify that certain conditions are present and the employee needs FMLA leave. A lot of times though, the employer just uses the note the employee brings in from the doctor. But what triggers a serious health condition under the FMLA is that an employee has a medical condition that requires him to be out of work for more than three calendar days, and he's under continuing treatment from a medical provider. The DOL said that going to the doctor once is enough to be considered under "continuing treatment from a medical provider" as long as the doctor prescribes medication for the employee.

And employer groups are protesting that broad definition?

The FMLA clearly was never meant to apply to short-term conditions like the flu or colds. So they're trying to get the legislature to overrule the DOL's position on that and clarify exactly what's meant by serious health condition--to get rid of any possibility that a serious health condition can be interpreted as something as simple and short-term as a cold.

The DOL also issued regulations last year saying that states have the right to use unemployment funds to compensate employees on FMLA leave. Do you think that will happen?

As far as I know, no state has done that yet. But the regulations give states the right to do that, and there have been lawsuits filed by various employer groups to try to stop it. They believe the DOL exceeded its authority in issuing those regulations.

Because of concern it will encourage FMLA abuse?

There are two reasons they oppose it. First, they believe it will encourage more abuse of the FMLA than we already have. One of the reasons Congress agreed to pass the FMLA is because they didn't think it would be subject to abuse, because employees wouldn't be paid while off work. So some people worry that paying employees makes it more likely they'll use FMLA leave as a vacation policy. The other reason is that this could put a tremendous strain on unemployment funds. If we have a downturn in the economy and the unemployment rates go up, there's a serious risk that some state employment funds could go bankrupt.

Some groups are lobbying for additional time for parents to attend their kids' school activities--12 to 24 hours a year. What's the current status of those proposals?

The FMLA right now has absolutely no provision that would allow employees to take time off for school functions. That amendment was being pushed by the Clinton administration and certain Democratic members of Congress. So with the change of parties in the White House, I don't know that that's something that would happen next year. It's not necessarily high on the Republican agenda.

Now let's review some basics. For instance, the FMLA overlap with the ADA: what should employers know about the interaction of these two laws?

The main thing to remember is, if a serious health condition qualifies for FMLA leave, it may also be considered a disability under the ADA. If that's so, then the 12 weeks the FMLA provides for leave may be just the beginning of what employers are required to provide. One reasonable accommodation under the ADA is to provide for an unpaid leave of absence. The ADA, unlike FMLA, places no time limits on how long an employee can be off work on a leave of absence--the employer has to make a case-by-case determination of when the leave places an undue hardship on the company. You have to be very careful to not fall into the trap of thinking that just because 12 weeks have passed, that's the end of your obligations.

What about intermittent leave: what exactly is allowed?

The FMLA allows intermittent leave for only two situations. That's where the employee needs it because of his or her own serious health condition or to care for the serious health condition of a spouse, parent, or child. An employer is not required to give employees intermittent leave to take care of a child after birth or bond with a child after adoption. One caveat to that is the possibility that during pregnancy a woman might need intermittent leave to be treated by a physician for complications. Intermittent leave just means that an employee doesn't necessarily take all of the 12 weeks of FMLA at once. She takes time off here and there as necessary--and it can be taken in the smallest block of time that the employer's timekeeping system allows. A lot of employers' systems keep time in six-minute increments, so theoretically you could have six-minute intermittent leave.

Does the employer have any control then over intermittent leave?

First, if an employee is taking intermittent leave, and the employer decides that the employee's position is not suited to taking intermittent leave--say he's a receptionist--the employer has the right to transfer the employee to another position until he no longer needs intermittent leave. The employee has to be paid the same and given the same benefits in the new position. Also, if the leave is being used to go to a physician or take someone to a physician, the FMLA says the employee has an obligation to work with the employer to the extent possible to schedule the medical appointment in the least disruptive way.

What if you suspect that an employee is being untruthful about a serious health condition?

The FMLA has some protections. Employers can request a second opinion from a medical-care provider of the employer's choosing--paid for by the employer. But if the opinion of the employer's physician differs, then the employer and employee have to mutually agree on a third physician, which again the employer must pay for. The third physician's opinion is binding. And if it is proved that employees have taken FMLA fraudulently, they can be dismissed. But the employer had better be sure it has some very strong evidence that the employee didn't need the FMLA leave. Also, on a slightly different note, if someone has recently taken or requested FMLA leave, and you are considering terminating that employee, be very careful that your reasons for termination are documented, because we see a lot of employees bring cases for retaliation for taking or requesting FMLA leave.

What about lack of notice--the employee has been out for a week but doesn't realize that FMLA leave has been triggered?

The burden on the employee for giving the employer notice of the need for FMLA is pretty light. Employees don't have to specifically say they want FMLA leave; they can just say they need time off from work because of a health condition. If an employee says her doctor wants her to stay home for an illness, and that she's taking a prescription medicine, FMLA is triggered. Now, if the employer doesn't have the information that would trigger FMLA leave, the employer has the right to retroactively count the time off from work as FMLA within a few days of learning that the time off qualified as FMLA leave. But that's only if the employer couldn't have known of a serious health condition or other FMLA-triggering event. Otherwise, you can't retroactively count FMLA leave.

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COPYRIGHT 2001 Gale Group