THE FAMILY AND MEDICAL LEAVE ACT:
A STATUTORY AND CASE LAW OVERVIEW
Stephen F. Befort*
Introduction
Congress enacted the Family and Medical Leave Act (FMLA) in 1993.1 In the
findings and purposes section of the act, Congress expressly recognizes the need for a
balance between the demands of the workplace and the needs of the family. This section
notes both the increasing number of single parent households and the lack of policies and
laws to accommodate working parents. Congress further acknowledges that society
traditionally has placed the burden of caring for family members on women. Since this
fact has been used in the past to discriminate against women, one of the stated purposes
of the FMLA is to provide leave, regardless of gender, in a manner that Aminimizes the
potential for employment discrimination on the basis of sex by ensuring generally that
leave is available . . . on a gender neutral basis.@2
Purposes for Which Leave is Provided
FMLA3 provides leaves for the following purposes:
(1) the birth of a child;
(2) the adoption or placement for foster care of a child;4
∗
Gray, Plant, Mooty, Mooty, & Bennett Professor of Law, University of Minnesota Law
School (http://www.umn.edu/facultyprofiles/beforts.htm); Member, National Academy of
Arbitrators (http://www.bms.state.mn.us/Resumes/Befort.pdf).
1
29 U.S.C. §§ 2601-54.
2
29 U.S.C. § 2601(b)(4).
3
The Act is accompanied by a detailed set of regulations which should be consulted when
an issue related to FMLA leave arises. See 29 C.F.R. Part 825.
1
(3) care for the employee's spouse, son, daughter or parent who has a serious
health condition; 5
(4) an employee’s own serious health condition which makes the employee
unable to perform the functions of his or her job;
(5) the occurrence of a qualifying exigency arising out of the fact that an
employee’s spouse, son, daughter, or parent is on or has been notified of impending call
to active duty in the Armed Forces in support of a contingency operation;6 or
(6) care for the employee’s spouse, son, daughter, parent, or next of kin who is a
covered service member (for a total of 26 work weeks during a 12-month period).7
FMLA defines a "serious health condition" as "an illness, injury, impairment, or
physical or mental condition that involves (A) inpatient care in a hospital, hospice, or
4
The Department of Labor has clarified which employees are entitled to take leave to
care for a child under the FMLA, noting that employees who care for a child in loco
parentis and have the actual day-to-day responsibilities of caring for the child, even in the
absence of a biological or legal relationship, are entitled to FMLA leave. U.S.
Department of Labor, Administrator’s Interpretation No. 2010-3 (June 22, 2010). In
Kelley v. Crosfield Catalysts, 135 F.3d 1202 (7th Cir.1998), an employee brought a
termination claim under FMLA after missing four consecutive work days to travel to
New York to obtain custody of a young girl, whom he believed might be his biological
daughter, for adoption or foster care placement; the court held that even if the girl were
the employee's biological child, her placement for adoption or foster care would be
covered by the FMLA.
5
The Eleventh Circuit interpreted the definition of “parent” and held that an employee
who cared for his granddaughter could pursue a FMLA claim. See Martin v. Brevard
County Pub. Schools, 543 F.3d 1261, 1265 (11th Cir. 2008) (reversing the district court’s
grant of summary judgment for employer and finding that a genuine issue of material fact
existed as to whether the employee was acting in loco parentis for his granddaughter and
therefore eligible for FMLA protection).
6
The regulations state that “qualified exigencies” include: (1) short notice deployments;
(2) military events and related activities; (3) childcare and school activities; (4) financial
and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment
activities; (8) leave to care for an injured service member, including care for certain
veterans, care for injuries or illnesses that were first incurred in the line of duty, and care
to cover existing or pre-existing conditions that were aggravated in the line of duty; and
(9) additional activities as agreed upon by both the employer and the employee. 29
C.F.R. § 825.126.
7
29 U.S.C.A. § 2612.
2
residential medical care facility; or (B) continuing treatment by a health care provider."8
Department of Labor regulations add a further gloss on the meaning of this term as
follows:
(a) For purposes of FMLA, "serious health condition" means an illness,
injury, impairment, or physical or mental condition that involves:
(1) Any period of incapacity or treatment in connection with or
consequent to inpatient care (i.e., an overnight stay) in a hospital, hospice,
or residential medical care facility;
(2) Any period of incapacity requiring absence from work, school,
or other regular daily activities, of more than three calendar days, that also
involves continuing treatment by (or under the supervision of) a health
care provider; or
(3) Continuing treatment by (or under the supervision of) a health
care provider for a chronic or long-term health condition that is incurable
or so serious that, if not treated, would likely result in a period of
incapacity of more than three calendar days; or for prenatal care.9
The federal courts frequently have had the need to construe these definitions. The
following four issues particularly have proven to be troublesome:
1) whether the employee or the qualifying family member suffered a period of
incapacity;10
8
29 U.S.C.A. § 2611. In Caldwell v. Holland of Texas, 208 F.3d 671 (8th Cir.2000), the
court developed a test for FMLA's "serious health condition" for toddlers, i.e., whether
the illness demonstrably affected the child's normal activity. In making this
determination, a variety of factors may be considered, including but not limited to:
whether the child participated in his daily routines or was particularly difficult to care for
during that period, and whether a day care facility would have allowed a child with the
child's illness to attend its sessions.
9
29 C.F.R. § 825.114. Circuits are split on the employee’s evidentiary burden required to
establish when a serious health condition exists. Some courts require medical evidence,
while other courts allow lay evidence alone. See Schaar v. Lehigh Valley Health Servs.
Inc., 598 F.3d 156 (3rd Cir. 2010).
10
Victorelli v. Shadyside Hospital, 128 F.3d 184 (3d Cir.1997) (an ongoing but treatable
medical condition that results in only occasional incapacitation can still be a "serious
medical condition" under FMLA); Martyszenko v. Safeway, Inc., 120 F.3d 120 (8th
Cir.1997) (employee's son, who was allegedly victim of sexual abuse, lacked serious
health condition as required to trigger employee's leave under FMLA, where examining
3
2) whether the period of incapacity exceeded three days in length;11
3) whether the employee or the qualifying family member was under the
continuing care of a health care provider;12 and
4) whether the employee’s absence was for the purpose of providing care. 13
psychiatrist reported no psychological disorder or mental condition, found son to be
worry free and undistracted, and did not restrict any of son's daily activities); Price v.
City of Fort Wayne, 117 F.3d 1022 (7th Cir.1997) (several health problems, none of
which alone constitutes a serious health condition, may, when taken together, rise to the
level of a serious health condition); Cash v. Smith, 231 F.3d 1301 (11th Cir.2000)
(because employee's medical condition of seizure disorder was being controlled by
medication it did not meet the statutory standards of a serious health condition); Stekloff
v. St. John's Mercy Health Systems, 218 F.3d 858 (8th Cir.2000) (an employee may
demonstrate the requisite incapacitation if she is unable to work in her current job due to
a serious health condition, even if that job is the only job which the employee is unable to
perform); Darst v. Interstate Brands Corp., 512 F.3d 903 (7th Cir. 2008) (ruling that
while an employee suffering from chemical addiction is entitled to FMLA leave for
incapacity resulting from treatment, employee was not entitled to leave for absences
associated with addiction prior to entering treatment).
11
Seidle v. Provident Mutual Life Insurance Co., 871 F.Supp. 238 (E.D.Pa.1994) (no
entitlement to leave for a condition that lasts less than three days); Caldwell v. Holland of
Texas, Inc., 208 F.3d 671 (8th Cir.2000) (employee's child's ear infection could qualify as
a "serious health condition" if employee could prove that child suffered a period of
incapacity for more than three days and received continuing treatment for the same
condition).
12
The regulations provide that an employee is subject to “continuing treatment” if the
employee receives treatment twice within 30 days of incapacity. See 29 C.F.R. §
825.115. See also Thorson v. Gemini, 205 F.3d 370 (8th Cir.2000) (employee who
suffered from stomach ulcers suffered from "serious health condition," and her firing
violated FMLA, where, although ulcers normally do not qualify as serious health
condition, employee was sufficiently ill to see doctor two times within period of few
days, which constituted "continuing treatment" under FMLA); Seidle v. Provident Mutual
Life Insurance Co., 871 F.Supp. 238 (E.D.Pa.1994) (finding that an employee who only
consulted a physician on one occasion concerning her son’s ear infection was not under
the continuing care of a health care provider).
13
See Marchisheck v. San Mateo County, 199 F.3d 1068 (9th Cir.1999) (holding that an
employee's five-week leave of absence to take her son overseas for safety reasons is not
"care" covered by the FMLA); Aubuchon v. Knauf Fiberglass, GMBH, 359 F.3d 950 (7th
Cir. 2004) (finding that an employee was not entitled to FMLA leave to stay home with
his pregnant wife without showing a medical need for providing care); Tellis v. Alaska
Airlines Inc., 414 F.3d 1045 (9th Cir.2005) (holding that employee’s regular telephone
calls to his pregnant wife while he was driving across the country to bring her a more
reliable car did not constitute “care” under the FMLA).
4
Eligible Employees
To be eligible for FMLA leave, an employee must be employed by a "covered
employer" and (1) have been employed by the employer for at least twelve months, (2)
worked at least 1,250 hours during the twelve month period immediately preceding the
beginning of the leave, and (3) be employed at a worksite where fifty or more employees
are employed within 75 miles of that work site.14 The First Circuit has interpreted the
twelve-month requirement as being satisfied even where the twelve months were not
consecutive, but split by a five-year stint with another employer.15 The Seventh Circuit
has held, however, that the 1250 hour requirement must be completed within a
consecutive 12 month period.16 Hours worked outside of a consecutive 12 month period
may not be substituted for purposes of satisfying the requirement.17 A regulation adopted
The FMLA authorizes leave to care for an adult child only if the child is suffering
from a serious health condition and is “incapable of self-care because of a mental or
physical disability.” 29 U.S.C.A. § 2611(12)(B). The Sixth Circuit, relying on the
regulations of the Secretary of Labor, has interpreted this to mean that “an employee may
take FMLA leave to care for an adult child only if that child is ‘disabled’ for purposes of
the ADA.” Novak v. MetroHealth Medical Center, 503 F.3d 572, 581 (6th Cir. 2007); 29
C.F.R. § 825.113(c)(2).
14
29 U.S.C.A. ' 2611; 29 C.F.R. '' 825.110, 825.111. Both the Fifth and Tenth Circuits
have held that 29 C.F.R. § 825.111(b), specifying that the “75-mile distance is measured
by surface miles, using surface transportation over public streets, roads, highways and
waterways” and that the distance should be measured as the crow flies only where there
is no “available surface transportation between worksites,” is entitled to deference.
Bellum v. PCE Constructors, 407 F.3d 734, 740 (5th Cir. 2005); Hackworth v.
Progressive Casualty Insurance Co., 468 F.3d 722 (10th Cir. 2006).
15
Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir.2006).
16
Bailey v. Pregis Innovative Packaging Inc., 600 F.3d 748, 750 (7th Cir. 2009).
17
Bailey, 600 F.3d at 750. However, for FMLA purposes, all work that the employer
knows or has reason to believe is being performed counts toward the threshold
requirement of 1250 hours. Thus, an employer need not have actual knowledge of an
employee's hours worked off-site or beyond the employee's regular schedule in order for
the hours to count toward the 1250 worked in the consecutive 12 month period;
5
in 2009 also recognizes that an employee may become eligible for FMLA leave if the 12month requirement is satisfied while the employee is out on non-FMLA leave provided
by the employer.18
Even if a former employee did not work the requisite 1250 hours needed to fall
within the definition of "eligible employee," she could nevertheless be entitled to FMLA
protection if the former employer wrongfully caused her ineligibility. The employee
could overcome the infirmity of inadequate hours of service if the shortfall resulted from
the employer failing to provide adequate notice of the employee's FMLA rights and
obligations, and the lack of information actually caused the employee to forfeit a FMLA
entitlement.19
The appellate courts are split as to whether hours of service for FMLA eligibility
include the hours an employee who was wrongfully discharged but later reinstated would
have worked but for the wrongful discharge. The First Circuit has held that “hours of
service * * * include only those hours actually worked in the service and at the gain of
the employer,” and not hours for which a wrongfully-discharged employee was
compensated in the form of back pay pursuant to an arbitral award,20 while the Sixth
Circuit has ruled that hours awarded to an unlawfully terminated employee pursuant to an
arbitrator’s “make-whole award” may count toward the hours-of-service requirement.21
At least one court has held that an employee not statutorily covered by FMLA can
constructive knowledge will suffice. Erdman v. Nationwide Insurance, 582 F.3d 500, 504
(3rd Cir. 2009).
18
29 C.F.R. § 825.110(d).
19
LaCoparra v. Permanent Home Centers, Inc., 982 F.Supp. 213 (S.D.N.Y. 1997).
20
Plumley v. S. Container, Inc., 303 F.3d 364, 372 (1st Cir. 2002).
21
Ricco v. Potter, 377 F.3d 599, 605-06 (6th Cir. 2004).
6
become entitled to FMLA benefits through promissory estoppel by showing reasonable
and detrimental reliance on an employer's promise to provide the equivalent of FMLA
leave.22 Other courts have rejected claims from statutorily-ineligible employees who
alleged that their employers should be equitably estopped from contesting FMLA
benefits. In these cases, the employer either failed to respond to the employee's request
for FMLA leave23 or mistakenly represented that an employee was eligible for benefits24
but the employee failed to demonstrate detrimental reliance.
An employee's FMLA eligibility for leave for birth, adoption, or foster care
placement expires twelve months after the birth, adoption, or placement of a child.25
Some courts of appeal have determined that the protections of FMLA extend to
prospective and former employees.26
Covered Employers
Covered employers are broadly defined to include any person engaged in any
industry or activity affecting commerce that employs fifty or more employees for each
22
See Peters v. Gilead Sciences, Inc., 533 F.3d 594 (7th Cir. 2008) (holding that,
although the employer did not have 50 employees within 75 miles, the company
handbook promising the equivalent of FMLA benefits established an enforceable contract
and the employee was entitled to damages after he was terminated for refusing to accept
substitute employment upon his return from medical leave).
23
See Sinacole v. iGate Capital, 287 Fed. Appx. 993 (3d Cir. 2008) (holding that the
employer's failure to respond to employee's leave request did not equitably estop the
employer from contesting employee's eligibility for FMLA benefits because the
employee failed to show detrimental reliance).
24
See Dobrowski v. Jay Dee Contractors, Inc., 571 F.3d 551 (6th Cir. 2009) (holding that
the employee was not eligible for FMLA benefits even though the employer mistakenly
represented that he was).
25
29 U.S.C.A. § 2612; 29 C.F.R. § 825.201.
26
Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1 (1st Cir. 1998); Smith v. BellSouth
Telecommunications, 273 F.3d 1303 (11th Cir. 2001).
7
working day during each of twenty or more calendar work weeks in the current or
preceding calendar year.27 FMLA also defines an “employer’ to include “any person
who acts, directly or indirectly, in the interest of an employer to any of the employees of
such employer.”28 Most courts have construed this language to hold that, at least in the
private sector, managers and supervisors may be held personally liable as covered
employers.29 The courts are split as to whether public sector manages and supervisors
also may be held personally liable.30
In a 2003 decision, the United States Supreme Court held that the Eleventh
Amendment does not bar state employees from suing in federal court for money damages
if the State fails to comply with FMLA’s leave provision regarding care for a family
member.31 That decision only addressed the family-care provision of FMLA, leaving
unsettled the issue of whether an employee can sue a state employer in federal court with
respect to FMLA leave for an employee’s own serious health condition. Although the
27
29 U.S.C.A. § 2611; 29 C.F.R. §§ 825.104, 825.105; See also, 29 C.F.R. § 825.106
(joint employment) and 29 C.F.R. § 825.107 (successor in interest). In Grace v. USCAR,
521 F.3d 655 (6th Cir. 2008), the court rejected an employer's defense that the employee
had only worked for the employer for 11 months, finding the employer to be a successor
in interest. The employer, a temp agency, was also found to be a joint employer with the
agency's client so that both the agency and client were responsible for violations of the
FMLA.
28
29 U.S.C.A. § 2611(4)(A)(ii); 29 C.F.R. § 825.104(d).
29
See, e.g., Brewer v. Jefferson-Pilot Standard Life Ins. Co., 333 F.Supp.2d 433
(M.D.N.C. 2004); Carpenter v. Refrigeration Sales Corp., 49 F.Supp.2d 1028 (N.D. Ohio
1999).
30
Compare Modica v. Taylor, 465 F.3d 174 (5th Cir. 2006) (holding that public official is
a covered employer under FMLA when sued in individual capacity); with Mitchell v.
Chapman, 343 F.3d 811 (6th Cir. 2003) (concluding that FMLA's individual liability
provision does not extend to public agencies).
31
Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953
(2003).
8
Supreme Court has not yet addressed this issue, several circuit courts have held that the
state’s constitutional immunity is intact as to suits arising from FMLA’s self-care
provisions.32
Intermittent Leave
In cases of leave to care for an ill family member or because of an employee's
own serious health condition, leave may be taken on an intermittent basis or on a reduced
leave schedule when medically necessary. In this case, an employer may require an
employee to transfer temporarily to an alternative position which better accommodates
recurring periods of leave so long as the employer provides equivalent pay and benefits.33
In cases of leave for the birth, adoption, or placement of a child, an intermittent or
reduced leave schedule may be taken only with the employer's consent.34
If “reasonable safety concerns” exist regarding an employee’s ability to perform
the job while on intermittent leave, an employer may require fitness for duty certification
from such employee up to once every 30 days.35 The Eighth Circuit Court of Appeals
has held that employees who are unable to perform essential job functions are not entitled
to intermittent/reduced schedule leave under FMLA. 36
When an employee is approved for intermittent FMLA leave, the leave
commences upon the first FMLA-approved absence and it extends to cover every other
32
See Miles v. Bellfontaine Habilitation Ctr., 481 F.3d 1106, 1107 (8th Cir. 2007);
Toeller v. Wis. Dep’t of Corr., 461 F.3d 871, 879 (7th Cir. 2006); Touvell v. Ohio Dep't
of Mental Retardation and Developmental Disabilities, 422 F.3d 392, 400-01 (6th Cir.
2005); Brockman v. Wyo. Dep't of Family Servs., 342 F.3d 1159, 1164 (10th Cir. 2003).
33
29 U.S.C.A. § 2612(b)(1), (2); 29 C.F.R. §§ 825.203, 825.204, 825.205.
34
29 U.S.C.A. § 2612(b)(1); 29 C.F.R. § 825.203.
35
29 C.F.R. § 825.312(f).
36
Hatchett v. Philander Smith College, 251 F.3d 670 (8th Cir. 2001).
9
FMLA-approved absence during the same 12-month FMLA period. Once a new 12month FMLA period begins, any additional absences caused by the same condition
constitute a new period of FMLA leave, and the employee must reestablish her eligibility
for FMLA leave.37
For purposes of counting intermittent leave against an employee’s full
entitlement, only the amount of leave actually taken may be counted.38 Holidays may be
included in the amount “actually taken” so long as they occur during a week-long interval
of intermittent leave.39
Employee Notice Requirements
Employees are required to provide 30 days advanced notice of the need for leave
that is foreseeable due to the birth or placement of a child or for planned medical
treatment.40 In cases where the need for leave is unforeseeable, an employee is obligated
to provide notice as soon as practicable under the circumstances.41 In addition,
employees are required to make a reasonable effort to schedule leave for planned medical
treatment so as not to unduly disrupt the employer's operations.42 Employees may be
37
See Davis v. Michigan Bell Telephone Co., 543 F.3d 345 (6th Cir. 2008) (holding that
an employee's eligibility for intermittent FMLA leave was properly reevaluated in
January and that employee was not eligible for intermittent FMLA leave for the
following year because she had not worked the requisite 1,250 hours in the previous
twelve-month period).
38
29 CFR § 825.205(a).
39
See Mellen v. Tr. of Boston Univ., 504 F.3d 21, 25 (1st Cir. 2007); 29 C.F.R. §
825.200(f).
40
29 U.S.C.A. § 2612(e); 29 C.F.R. § 825.302(a).
41
29 U.S.C.A. § 2612(e); 29 C.F.R. § 825.303; Willis v. Coca Cola Enterprises Inc., 445
F.3d 413 (5th Cir.2006) (employee was required to provide notice of a serious health
condition even though she was placed on involuntary medical leave by employer).
42
29 U.S.C.A. § 2612(e)(2)(A); 29 C.F.R. § 825.302.
10
required to give notice according to the employer’s internal reporting requirements as
long as the employer’s requirements are not more stringent than FMLA reporting
requirements.43
An employee must provide an employer with sufficient information to give
reasonable notice of a leave request,44 but is not required to invoke FMLA expressly in
43
29 C.F.R. § 825.302(d). See Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706 (7th
Cir. 2002) (holding that employer was justified in terminating an employee on FMLA
leave where she could have but did not keep employer informed of her status and need
for extended leave as required by the employer’s policies and the union agreement
covering the employee); Cavin v. Honda of Am. Mfg., 346 F.3d 713, 720 (6th Cir. 2003)
(stating an employer may not limit the employee’s rights “by denying them whenever an
employee fails to comply with internal procedural requirements that are more strict than
those contemplated by the FMLA”); Callison v. City of Philadelphia, 430 F.3d 117 (3d
Cir.2005) (finding that City’s policy of requiring certain employees to provide medical
certification for all sick days and to call in to work when leaving and returning home
while on a sick day did not interfere with employees’ FMLA entitlements); Bacon v.
Hennepin County Medical Center, 550 F.3d 711 (8th Cir. 2008) (holding that employer
was justified in terminating an employee on FMLA leave who failed to meet employer’s
requirement that all employees on indefinite leave call in every day).
44
McGraw v. Sears, Roebuck & Co., 21 F.Supp.2d 1017 (D.Minn.1998) (although
employer has duty to inquire about employee's condition based on statements made by
employee, mere declaration that employee is going to counseling, or that family member
is ill, is insufficient to comply with FMLA's notice requirement); see Carter v. Ford
Motor Co., 121 F.3d 1146 (8th Cir.1997) (employee did not give employer adequate
notice of need to take leave due to illness, where employee's wife told employer that she
was sick and that employee would be out for awhile, and employee later informed
employer that he would be out, but offered no further information and stated that he did
not know when he would return); Walton v. Ford Motor Co., 424 F.3d 481 (6th Cir.2005)
(employee’s calls to company’s security office, rather than to his supervisor, not
sufficient notice that he needed FMLA leave); Aubuchon v. Knauf Fiberglass, GMBH,
359 F.3d 950, 952 (7th Cir. 2004) (“If you have brain cancer but just tell your employer
that you have a headache, you have not given the notice that the Act requires.”); Phillips
v. Quebecor World RAI Inc., 450 F.3d 308 (7th Cir.2006) (employee’s statement that she
was “sick” and had consulted a physician not sufficient notice that her absence qualified
for FMLA protection); Rask v. Fresenius Medical Care North America, 509 F.3d 466,
473 (8th Cir. 2007), cert. denied, 128 S. Ct. 2965 (U.S. 2008) (employee's statement that
she had been diagnosed with depression was not sufficient notice of a serious health
condition because depression has many variations, some of which are not serious).
But see Burnett v. LFW, Inc., 472 F.3d 471 (7th Cir.2006) (employee’s disclosure
of series of health problems (including “feeling sick,” need for prostate biopsy, and
11
order to qualify for leave under the act.45 While the Seventh Circuit has ruled that an
employee who is unable to give notice due to the effects of a serious health condition is
excused from complying with the notice requirement46 a more recent decision of the
Eighth Circuit has ruled that there is no constructive notice available for an employee
who cannot give express notice that they are seeking FMLA leave.47 In the case of joint
employment under FMLA, courts have held that an employee's act of informing the
primary employer of an intention to take FMLA leave upon becoming ill was sufficient to
trigger potential liability for both employers.48
Medical Certification
An employer may require that an employee provide a medical certificate from a
health care provider to support a request for leave based upon the employee's own serious
saying “I want to go home”) over period of four months constituted sufficient notice of
serious health condition under FMLA).
45
Manuel v. Westlake Polymers Corp., 66 F.3d 758 (5th Cir.1995); Cavin v. Honda of
Am. Mfg., 346 F.3d 713 (6th Cir. 2003) (holding employee was entitled to FMLA leave
where he only mentioned that he had been in a motorcycle accident, was treated at the
hospital, and planned to return to work the next day but ended up missing several days of
work).
46
Byrne v. Avon Prod., Inc., 328 F.3d 379 (7th Cir. 2003). The Seventh Circuit Court of
Appeals in that case considered whether an employee, ravaged by severe depression, was
“able” to give notice to his employer that he needed to take leave, noting that “[a] person
unable to give notice is excused from doing so.” 328 F.3d at 382. The court also
considered whether the employee’s extreme change of behavior might serve as notice in
itself, stating, “[i]f a trier of fact believes either (a) that the change in behavior was
enough to notify a reasonable employer that Byrne suffered from a serious health
condition, or (b) that Byrne was mentally unable either to work or give notice early in
November 1998, then he would be entitled to FMLA leave covering the period that Avon
treats as misconduct.” 328 F.3d at 382.
47
Scobey v. Nucor Steel-Arkansas, 580 F.3d 781 (8th Cir. 2009).
48
See Grace v. USCAR, 521 F.3d 655, 668-69 (6th Cir. 2008) (holding that a staffing
agency and a design firm were joint employers and that the employee satisfied FMLA
notice requirement as to both by notifying her primary employer that she intended to take
FMLA leave).
12
health condition or that of the employee's family member for whom care is provided. In
the case of leave to care for a seriously ill family member, the certification must explain
why the employee's assistance is necessary. In the case of leave for an employee's own
serious health condition, an explanation of the employee's inability to perform the
essential functions of his job must be provided.49
An employer finding a medical certification incomplete shall advise the employee
and provide the employee with a reasonable opportunity to cure the deficiency.50 The
Fifth Circuit has held, however, that the duty to advise an employee of a deficiency in
certification and to provide an opportunity to cure does not arise when the employee has
failed to submit requested medical certification to the employer altogether.51 If an
employee fails to provide requested medical certification within the time established by
an employer, which may not be less than fifteen calendar days, or within a reasonable
time under the particular facts and circumstance if the leave was not foreseeable, an
employer may delay an employee’s taking of FMLA leave until the certification is
provided.52 If an employee never produces requested certification, an employer may treat
the leave as non-qualifying under FMLA.53
49
29 U.S.C.A. § 2613; 29 C.F.R. §§ 825.305, 825.306.
50
29 C.F.R. § 825.305(d). See Sorrell v. Rinker Materials Corp., 395 F.3d 332, 336-37
(6th Cir.2005) (in remanding for consideration of whether an employer was precluded
from contesting a former employee’s eligibility for FMLA leave after having initially
approved it, the court noted that it was particularly concerned with the employer’s alleged
failure to notify the employee that it found his medical certification incomplete or giving
him the opportunity to cure any deficiency).
51
Urban v. Dolgencorp of Tex., Inc., 393 F.3d 572 (5th Cir.2004).
52
29 CFR § 825.311.
53
29 CFR § 825.311(b); See Woods v. DaimlerChrysler Corp., 409 F.3d 984 (8th
Cir.2005) (employee not entitled to FMLA protection where he responded to employer’s
requests for documentation by saying he was “stressed” and needed time off).
13
After providing an employee with an initial opportunity to cure certification
deficiencies, the 2009 amended regulations permit an employer to contact an employee’s
health care provider directly to authenticate information without the employee’s
permission. However, only a human resources personnel or other administrator, not the
employee’s supervisor, may initiate this contact. 54
An employer normally may request recertification no more than every 30 days
and then only in conjunction with an absence, unless the minimum duration of the period
of incapacity is more than 30 days..55 An employer may require recertification in less
than 30 days if an employee requests an extension of leave, the circumstances of the
earlier certification change, or the employer has sufficient reason to doubt the validity of
the certification.56 An employer may require recertification every six months for
intermittent or reduced schedule leave.57 Employers can seek new medical certification
when an employee requests FMLA leave for the first time in a new leave year, and can
follow with a second or third medical opinion if appropriate.58
An employer with a reasonable basis to doubt the validity of medical certification
may require a second medical opinion at its expense. The employer can designate the
health care provider for this purpose.59 Should the first two medical opinions differ, a
54
29 C.F.R. § 825.307(a).
55
29 C.F.R. § 825.308(a). An employee must be given at least 15 days to comply with a
recertification request. 29 C.F.R. § 825.311. See Killian v. Yorozu Automotive
Tennessee, 454 F.3d 549 (6th Cir.2006); Cooper v. Fulton County, Ga., 458 F.3d 1282
(11th Cir.2006).
56
29 C.F.R. § 825.308(c).
57
29 C.F.R. § 825.308(b).
58
Wage & Hour Opinion Letter, FMLA 2005-2-A (2005).
59
29 U.S.C.A. § 2613; 29 C.F.R. § 825.207. It should be noted that if an employee
14
third opinion from a health care provider mutually agreed upon by the employer and the
employee may be required. The employer must pay for this opinion as well.60 The
opinion of the third health care provider is final and binding on both the employer and the
employee.
Employer Obligations
a.
Pay and Benefits
FMLA does not require a covered employer to provide paid leave.61 However, an
employee may elect, or an employer may require, substitution of accrued paid vacation
leave, personal leave, or family leave to care for a family member who has a serious
medical condition.62 In the case of the employee’s own serious medical condition, the
employee also may elect, or the employer may require, use of the employee’s accrued
paid sick or medical leave.63 An employer may require that an employee’s FMLA leave
and paid sick leave run concurrently.64 The employer need not provide paid sick leave or
paid medical leave in any situation in which the employer normally would not provide
submits a complete certification signed by the health care provider, the employer may not
request additional information directly from the health care provider, but the employer's
health care provider may contact the employee's health care provider, with the employee's
permission, for clarification and authentication. 29 C.F.R. § 825.207(a). In the case of a
worker's compensation absence which runs concurrently with the FMLA leave, the
employer may have direct contact with the employee's health care provider if permitted
by the worker's compensation statute. 29 C.F.R. § 825.307(a)(1).
60
29 U.S.C.A. § 2613; 29 C.F.R. Pt. 307.
61
29 U.S.C.A. § 2612(c).
62
29 U.S.C.A. § 2612(d)(2)(B).
63
29 U.S.C.A. § 2612(d)(2)(A).
64
See Chubb v. City of Omaha, 424 F.3d 831 (8th Cir. 2005 (holding that an employee’s
paid sick leave ran concurrent with his FMLA leave such that employer did not violate
FMLA by denying request for additional leave).
15
paid leave.65 If an employer contributes to a group health plan on the employee’s behalf,
it must continue to do so while the employee is on FMLA leave at the same level that it
would have if the employee was not on leave.66
The FMLA forbids an employer from using covered leave as a negative factor in
employment decisions.67 With respect to bonuses, some courts have applied this
principle to find that an employer generally may not reduce a bonus that is based on the
absence of an occurrence (such as a bonus rewarding good attendance or job safety) due
to FMLA leave, but may reduce a bonus that rewards meeting or exceeding production
goals when such goals are not met due to a FMLA-qualifying absence.68 Regulations
adopted in 2009 attempt to eliminate this distinction by providing that an employer may
deny a bonus to an employee who failed to meet a bonus goal due to FMLA leave so long
as employees on equivalent non-FMLA leave are treated the same.69
b.
Employer Notice
FMLA and accompanying regulations require that employers provide notice of
employees' rights under the act in three ways:
(1) a notice posted at the workplace;
65
29 U.S.C.A. § 2612(d)(2)(B).
66
29 U.S.C.A. § 2614(c)(1). See Ryl-Kuchar v. Care Ctrs. Inc., 565 F.3d 1027 (7th Cir.
2009) (affirming damages award to employee whose employer terminated her health
benefits while she was on FMLA leave).
67
29 C.F.R. § 825.220(c).
68
Compare Dierlam v. Wesley Jessen Corp., 222 F.Supp.2d 1052 (N.D.Ill.2002) (holding
that an employee on FMLA leave was entitled to receive the full “stay” bonus she would
have received had she not been on FMLA leave during part of the period considered in
the bonus determination); with Sommer v. The Vanguard Group, 461 F.3d 397 (3d.
Cir.2006) (ruling that employer may pro-rate production bonuses where employee had
lower production than coworkers due to FMLA leave).
69
29 C.F.R. § 825.215.
16
(2) notice to the employee provided at the time an employee requests family or
medical leave; and
(3) notice of FMLA information included in a handbook or similar document if an
employer has chosen to disseminate such a document.70
In addition, once an employee requests a leave of absence, Department of Labor
regulations obligate the employer to inform the employee (either orally or in writing)
within five days as to whether the leave is approved as qualifying under FMLA.71
The U.S. Supreme Court has held that the Department of Labor regulation
providing that paid or unpaid leave taken by an employee does not count against an
employee's FMLA entitlement if the employer does not timely designate the leave as
FMLA-qualifying was contrary to the FMLA and beyond the authority of the Secretary
of Labor to adopt. The Court noted that the regulation punished employers for failing to
provide timely notice without requiring the employee to show any evidence of harm
suffered because of the lack of notice.72 However, an employee may be able to make out
a violation if it can show that the employer’s failure to provide notice resulted in tangible
harm to the employee.73
70
29 U.S.C.A. § 2619; 29 C.F.R. §§ 825.300, 825.301.
71
29 C.F.R. § 825.300(b). In addition to this “eligibility” notice, the regulations require
an employer to provide a “designation” notice within five business days of when it has
sufficient information to determine whether the employee is taking leave for an FMLAqualifying reason. 29 C.F.R. § 825.300(d). Some courts had held that an earlier FMLA
regulation requiring that employers give employees advance notice that their paid leave
will be counted as FMLA leave was invalid and unenforceable. See McGregor v.
Autozone, Inc., 180 F.3d 1305 (11th Cir.1999); Sarno v. Douglas Elliman–Gibbons &
Ives, Inc., 183 F.3d 155 (2d Cir.1999).
72
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155, 152 L.Ed.2d
167 (2002) (invalidating 29 C.F.R. § 825.700(a)).
73
In Conoshenti v. Pub. Servs. Elec. & Gas Co., 364 F.3d 135 (3d Cir.2004), the court
held that an employer’s failure to advise an employee of his right to FMLA leave after
17
c.
Denial of Leave and Termination
In general, FMLA leave is an entitlement, and an employee who establishes an
employer's improper denial of leave need not also show that he or she was treated in a
discriminatory manner.74 As such, most courts have found that the burden-shifting
scheme of McDonnell-Douglas is inapplicable to FMLA entitlement claims.75 In addition
to leave entitlements, FMLA makes it illegal for an employer to induce employees not to
exercise FMLA rights, or to discriminate or retaliate against individuals who exercise
FMLA rights.76
d.
Reinstatement
An employer must reinstate an employee who has taken FMLA leave to the
position held before taking the leave or to a position with equivalent benefits, pay and
other terms and conditions of employment.77 Under the FMLA, a position is equivalent if
the employee gave proper notice of his serious health condition would constitute an
actionable interference with his right to leave, if the employee could show that the failure
to advise rendered him unable to exercise that right in a meaningful way, thereby causing
him injury. See also Downey v. Strain, 510 F.3d 534 (5th Cir.2007) (finding violation of
notice requirement where employee demonstrates that he or she suffered prejudice from
lack of notice).
74
See Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711 (7th Cir. 1997) (ruling that
liability is established under FMLA if an employee is denied rights which he or she is
entitled, regardless of whether other employees are or are not treated more favorably).
75
Rankin v. Seagate Technologies, 246 F.3d 1145 (8th Cir. 2001); Diaz v. Fort Wayne
Foundry Corp., 131 F.3d 711 (7th Cir. 1997).
76
29 U.S.C.A. § 2613; 29 C.F.R. § 825.200; See also Bryant v. Dollar General Corp.,
538 F.3d 394 (6th Cir. 2008) (holding that employer unlawfully retaliated against
employee when it terminated her four days after returning from FMLA leave). An
employee’s exercise of their rights protected under the FMLA includes valid requests for
FMLA leave. An employee may proceed with FMLA claims against their employer even
if they have not taken actual leave. Erdman v. Nationwide Insurance, 582 F.3d 500, 508
(3rd Cir. 2009).
77
29 U.S.C. A. § 2614(a)(1).
18
both the duties and the compensation are substantially similar.78 An employer is required
to restore an employee returning from leave to the same or an equivalent position as soon
as the employee is able to perform the essential functions of the position and returns from
leave.79 If an employee’s return date from FMLA leave is unanticipated by the employer,
the employee may be required to give the employer two days notice.80
Certain limited exceptions apply to this reinstatement requirement. First, if the
employee is a "key employee," the employee need not be reinstated if such action is
necessary to prevent substantial and grievous economic injury to the employer's
operations.81 In this event, the employer must notify the employee of its intent to deny
reinstatement when the employer determines that such injury would occur and, if the
leave already has commenced, provide the employee with the option to return from
leave.82 Second, if the employee has taken leave due to his own serious health condition,
he may be required to provide medical certification before returning to work if it is the
employer's practice or policy to require this certification of all such employees. An
78
Cooper v. Olin Corp., 246 F.3d 1083 (8th Cir. 2001); see also Hendricks v. Compass
Group, USA, Inc., 496 F.3d 803 (7th Cir. 2007) (ruling that employer did not violate
FMLA when employee returned to work on a light duty workers compensation
assignment at less than the prior rate of pay).
79
Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 247 (6th Cir.2004) (holding that the
text of the FMLA requires restoration upon return from leave, not within a “reasonable
time after the employee is able to return from such leave,” unless a specific limitation or
exception applies).
80
29 C.F.R. §§ 825.309(c), 825.312(e). See Hoge v. Honda of Am. Mfg., Inc., 384 F.3d
238, 248 (6th Cir.2004) (finding that the employee's return from leave was sufficient
notice and that the employer was required to restore the employee within two days of her
return).
81
A "key employee" is a salaried employee who is among the highest paid 10% of
employees within 75 miles of the employee's worksite. 29 U.S.C.A. § 2614(b)(2); 29
C.F.R. § 825.217.
82
29 U.S.C.A. § 2614(b)(1), (2); 29 C.F.R. § 825.219.
19
employee who fails to do so may be denied reinstatement except where required by state
or local law, or a collective bargaining agreement.83 Third, an employer may deny
reinstatement to an employee who is laid off or terminated for a reason unrelated to the
taking of FMLA leave.84 The appellate courts are split as to which party bears the burden
of persuasion under such circumstances.85 Fourth, an employer may decline to reinstate
an employee who fraudulently obtains FMLA leave.86 Finally, once an employee takes
leave beyond that protected by FMLA, the employer is relieved of its obligation to return
83
29 U.S.C.A. § 2614(a)(4); 29 C.F.R. § 825.310; see also, 29 C.F.R. § 825.216.
84
See O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349 (11th Cir.2000) (female
employee who was terminated pursuant to a reduction in force while on pregnancy leave
under FMLA did not have cause of action, inasmuch as employer had proven that
employee would have been laid off during FMLA period in any event because of
economic losses); Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 977 (8th
Cir.2005) (finding sufficient evidence to establish that employer discharged employee
during her FMLA leave for poor work performance and disruptive conduct, not for
exercising her FMLA rights, the court held that “an employer who interferes with an
employee’s FMLA rights will not be liable if the employer can prove it would have made
the same decision had the employee not exercised the employee’s FMLA rights.”);
Crouch v. Whirlpool Corp., 447 F.3d 984 (7th Cir.2006) (holding that employer’s honest
suspicion of employee’s misuse of FMLA leave justified his termination, after private
investigator found employee performing activities inconsistent with his disability leave
and employee admitted to vacationing in Las Vegas during the leave); Phillips v.
Matthews, 547 F.3d 905 (8th Cir. 2008) (holding that employee who was terminated after
failing to show up for work before a doctor’s appointment failed to raise a sufficient
FMLA interference claim).
85
Compare O’Connor, 200 F.3d 1349, 1354 (11th Cir.2000) (referencing 29 C.F.R. §
825.216(d) which states “[a]n employer would have the burden of proving that an
employee would have been laid off during the FMLA leave period and, therefore, would
not be entitled to restoration”) with Rice v. Sunrise Express Inc., 209 F.3d 1008, 1018
(7th Cir.2000) (holding that although employer may have to show some evidence that the
employee would have been terminated whether or not taking FMLA leave the employee
retains the burden of persuasion by preponderance of the evidence).
86
29 CFR § 825.312(g). See Vail v. Raybestos Products Co., 533 F.3d 904 (7th Cir.
2008) (ruling that an employer does not violate the FMLA where it refuses to reinstate an
employee based on an honest suspicion that she was abusing leave by working for a
family business); Smith v. The Hope School, 560 F.3d 694 (7th Cir. 2009) (holding that
employee's falsified paperwork precluded her from being entitled to FMLA leave, and
that termination because of unexcused absences from work was not retaliatory).
20
the employee to the pre-leave position.87
Enforcement
An employee who believes that his FMLA rights have been violated may file a
private lawsuit against the employer or file a complaint with any local office of the Wage
and Hours Division of the Department of Labor.88 The Secretary of Labor may
investigate and attempt to resolve complaints of FMLA violations or bring a civil action
against the employer to recover damages to be paid to the employee.89
Employees may bring two categories of suits against the employer for violation of
the FMLA: interference claims and retaliation claims. An employer interfering with an
employee’s right to FMLA leave or to reinstatement following the leave is a violation
regardless of the employer’s intent.90 To prevail on an interference claim, a plaintiff must
establish that (1) he is an eligible employee, (2) the defendant is an employer, (3) the
employee was entitled to leave under the FMLA, (4) the employee gave the employer
notice of his intention to take leave, and (5) the employer denied the employee FMLA
benefits to which he was entitled.91 Alternatively, an employer may not take adverse
87
Slentz v. City of Republic, 448 F.3d 1008 (8th Cir.2006) (holding that even though
employee had more than twelve weeks of accrued sick leave, employer did not violate the
FMLA by discharging him after he failed to return to work upon expiration of FMLA
leave).
88
29 C.F.R. §§ 825.400, 825.401.
89
29 U.S.C.A. § 2617(b).
90
29 U.S.C.A. § 2615(a)(1); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955,
960 (10th Cir.2002).
91
Cavin v. Honda of Am. Mfg., 346 F.3d 713, 719 (6th Cir.2003). In an FMLA
interference case, courts examine not whether the FMLA leave was the but-for cause of
an employee’s discharge or demotion, but rather whether the taking of leave was the
proximate cause of the discharge or demotion. Schaaf v. SmithKline Beecham Corp., 602
F.3d 1236, 1242 (11th Cir. 2010).
21
employment actions against an employee for exercising FMLA rights.92 In order to make
out a prima facie case for retaliation, the employee must establish by a preponderance of
the evidence that (1) he exercised rights protected under the FMLA, (2) he was qualified
for his position, (3) he suffered an adverse employment action, and (4) the adverse
employment action occurred under circumstances giving rise to an inference of
retaliatory intent.93
Most courts have found that the burden-shifting scheme of McDonnell Douglas is
inapplicable to FMLA interference claims, and an employee who establishes an
employer’s improper denial of leave need not also show that he or she was treated in a
discriminatory manner.94 In allocating the burdens of production and persuasion for
retaliation claims, on the other hand, most courts use the McDonnell Douglas burdenshifting test, which requires the employer to articulate a legitimate nondiscriminatory
reason for the adverse employment action after the employee has established a prima
facie case of retaliation.95 Once the employer produces evidence of a legitimate reason,
the employee must prove that the reason offered is a pretext, and that the employer’s
motive actually was retaliation for the employee’s use of FMLA leave.96 In Richardson
v. Monitronics, the Fifth Circuit employed a “mixed-motive” approach, which allows the
employer to prove that even though retaliation was a motivating factor for the adverse
employment decision, the same action would have been taken even in the absence of such
92
29 U.S.C.A. § 2615(a)(2).
93
Potenza v. City of N.Y., 365 F.3d 165, 167 (2d Cir.2004).
94
Bachelder v. America West Airlines Inc., 259 F.3d 1112 (9th Cir. 2001); Rankin v.
Seagate Technologies, 246 F.3d 1145 (8th Cir.2001); Diaz v. Fort Wayne Foundry Corp.,
131 F.3d. 711 (7th Cir. 1997).
95
See, e.g., Hunt v. Rapides Healthcare Sys., Inc., 277 F.3d 757, 768 (5th Cir.2001).
96
Hunt, 277 F.3d at 768.
22
motivation.97
Until 2009, a Department of Labor regulation made unenforceable any waiver of
an employee’s rights under FMLA.98 Some courts interpreted this regulation to prohibit
the waiver of both prospective and retrospective claims.99 The regulation was amended
during the waning days of the second Bush administration so as to provide that an
employee may settle or release FMLA claims based on past employer conduct without
obtaining Department of Labor or court approval.100
The statute of limitations on FMLA claims is two years following the date of the
last event constituting the alleged violation.101 However, in cases of a willful violation
97
434 F.3d 327, 333 (5th Cir.2005). See also Hunter v. Valley View Local Schools, 579
F.3d 688, 692 (6th Cir. 2009) (holding that if an employee asserting an FMLA retaliation
claim has presented sufficient evidence to establish that their employer has discriminated
against them because of their FMLA leave, the burden then shifts to the employer to
prove by a preponderance of the evidence that it would have made the same decision
absent the impermissible motive.)
98
29 C.F.R. § 825.220(d).
99
There is a circuit split regarding whether this regulation applied to both prospective and
retrospective claims. Compare Butler v. Merrill Lynch Bus. Fin. Servs. Inc., 570
F.Supp.2d 1047 (N.D.Ill. 2008) (holding that the claim of a former employee who was
fired two months after returning from FMLA leave is barred by the release he signed in
his severance package) with Taylor v. Progressive Energy, Inc., 493 F.3d 454 (4th Cir.
2007) (holding that the regulation prohibiting waiver of FMLA rights applies to
retrospective waiver of claims). See also Farris v. Williams WPC-I, Inc. 332 F.3d 316
(5th Cir. 2003) (interpreting DOL regulation to prohibit only the waiver of substantive
rights, not the waiver of a potential claim in exchange for consideration in a severance
agreement); Jann v. Interplastic Corp., 631 F.Supp.2d 1161 (D.Minn. 2009) (granting
employer’s motion to compel arbitration of FMLA and discrimination claims where
employee had signed an employment agreement to arbitrate such claims).
100
29 C.F.R. § 825.220(d).
101
29 U.S.C.A. § 2617(c)(1). See also Reed v. Lear Corp., 556 F.3d 674, 681 (8th Cir.
2009) (explaining that an alleged FMLA violation occurs when an employer improperly
denies FMLA leave and not when a termination occurs, even though it may follow such
denial. The statute of limitations on an FMLA claim begins to run when the alleged
FMLA violation occurs, and not on the date of actual termination).
23
the limitations period increases to three years.102 The standard for willfulness is whether
“the employer either knew or showed reckless disregard for the matter of whether its
conduct was prohibited by statute.”103 The Eighth Circuit has found that an employer’s
failure to obtain legal advice before reducing the authority of an employee’s position
while she was leave did not demonstrate, by itself, a willful FMLA violation.104
Remedies under the FMLA include actual damages, interest, liquidated damages
equal to the amount of actual damages plus interest, and equitable relief.105 The court has
discretion to decline to award liquidated damages if the employer’s FMLA violation was
in good faith and the employer had reasonable grounds for believing that the act or
omission had not violated the Act.106 The court also may award reasonable attorney fees,
expert witness fees, and other costs. 107
Effect on Other Laws and Employer Obligations
FMLA does not modify or affect any federal or state law prohibiting
discrimination on the basis of race, religion, color, national origin, sex, age or disability.
102
29 U.S.C.A. § 2617(c)(2).
103
Hanger v. Lake County, 390 F.3d 579, 583 (8th Cir.2004); Bass v. Potter, 522 F.3d
1098, 1103–04 (10th Cir. 2008).
104
Hanger v. Lake County, 390 F.3d 579, 584 (8th Cir.2004).
105
29 U.S.C.A. § 2617(a)(1); 29 C.F.R. § 825.400.
106
See Hite v. Vermeer Mfg. Co., 446 F.3d 858 (8th Cir.2006) (upholding liquidated
damages for employee who was harassed by her supervisor after properly requesting
FMLA leave); Traxler v. Multnomah County, 596 F.3d 1007, 1011-12 (9th Cir. 2010)
(joining the Fourth, Fifth, and Tenth Circuits and finding that it is within a trial court’s
power under the FMLA to award front pay as an alternative to reinstatement to an
employee who brings FMLA claims against their employer challenging their termination
for taking FMLA leave. The court held that because the FMLA does not specifically
provide for front pay, a trial court’s power under the FMLA to award front pay as an
alternative remedy is derived from 29 USC § 2617(a)(1)(B), which grants courts the
authority to award equitable relief as may be appropriate).
107
29 U.S.C.A. § 2617(a)(3); 29 C.F.R. § 825.400.
24
Nothing in FMLA supersedes any state or local law that provides greater family or
medical leave rights than those provided under FMLA.108 In addition, nothing in FMLA
overrides the employer's obligation to comply with collective bargaining agreements or
benefit programs that provide greater rights to employees than those established by
FMLA.109
108
29 U.S.C.A. § 2651; 29 C.F.R. §§ 825.701, 825.702.
109
29 U.S.C.A. § 2652; 29 C.F.R. § 825.700.
25