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A Preventive Approach To FMLA Claims

Posted by attorney Nancy Fonti

The rights and obligations created under the Family and Medical Leave Act ("FMLA") can leave even the most seasoned human resources professional confused. To prevent potential liability, employers should have a clear policy and process in place to ensure compliance with the law. Furthermore, since a violation of the FMLA can result in significant liability, employers should always ensure that they are in compliance with the law before denying FMLA to an employee who requests it.

What is FMLA?

Enacted in 1993, the FMLA gives eligible employees the right to take up to twelve (12) weeks of unpaid leave for specified family and medical reasons. An employee may take FMLA leave if he or she has a serious health condition and therefore cannot perform the essential functions of his job. An employee may also take FMLA leave to care for a spouse, child or parent with a serious health condition. Serious health conditions are illnesses or injuries requiring in patient treatment or continuing treatment by a health care provider. Mental health conditions may also qualify as serious health conditions if they require continuing treatment.

The FMLA also gives employers certain rights. The law allows an employer to require an employee on FMLA leave to obtain medical certification of his condition. An employer may also require the employee to obtain a "Fitness for Duty" certificate from his medical provider stating that he may return to work.

As an employer, how can I ensure compliance with FMLA?

An organized paper trail is an important tool for ensuring compliance with the law. Key documents that an employer should file include:

* A record stating the employee's request for leave and the date of the request;

* Verification from the employee's physician confirming his serious medical condition, if required by the company;

* Any correspondence, including emails, to or from the employee regarding his leave; and

* A "Fitness for Duty" certificate completed by the employee's physician verifying that the employee may return to work, if required by the company.

Employers should also create a "chronology" of important dates. The chronology should include the date of the request for leave, the date the leave was taken, and the date of the employee's return to work. Dates of any communication with the employee regarding his or her leave should also be included.

Additional key points to keep in mind when an employee requests FMLA leave include:

* FMLA's notice requirement is not applicable to emergency situations: The FMLA requires an employee to provide 30 days notice of his or her intent to take leave. However, the law also recognizes that many serious health issues are emergencies. In such situations, an employee is required to give notice to his employer of the leave as soon he or she is able. Thus, an employer should not deny FMLA to an employee simply because the employee did not meet the notice requirement.

* The employer has the burden of recognizing that the leave requested qualifies as FMLA leave: An employee's request for FMLA leave is effective even if he does not specifically mention the law. An employee may simply state that he needs to take time off to care for a sick family member. It is the employer's job to recognize that the leave qualifies as FMLA leave.

* An employer may require an employee to put his or her request for leave in writing: If the employer's notice requirements demand written notice, the employee's failure to provide such notice can be grounds for denying or delaying approval of leave qualifying under the FMLA.

* Employers should always give the employee requesting FMLA leave the benefit of the doubt: When acting on an FMLA request, an employer should have a policy of giving the "benefit of the doubt" to the employee. For example, if the "certification" information submitted by the employee or the employee's doctor does not show that the employee has a serious medical condition, rather than deny the request, the employee should be given a chance to obtain additional certification within a reasonable time.

What happens when an employer denys FMLA leave to an eligible employee?

The consequences for denying FMLA leave to an eligible employee can be severe. For example, in Lubke v. City of Arlington, 455 F.3d 489 (5th Cir. Tex. 2006), the plaintiff , a 22-year veteran of the Defendant City of Arlington's fire department, was scheduled to work December 31, 1999 through January 1, 2000. Like many organizations in late 1999, the fire department had a "Y2K plan" in place. On December 30, 1999, Plaintiff telephoned a call box and left a message stating that he would not be at work during the Y2K weekend because he had to care for his wife, who was ill. When he returned, Plaintiff submitted a standard leave form, on which he wrote: "Wife was ill with severe bronchitis/possible pneumonia. During coughing spells had strained back muscles and could not get out of bed. Needed my assistance."

The plaintiff also provided his employer with an examination form from a doctor dated December 22, 1999 and receipts for three prescriptions for his wife. Plaintiff's supervisor then submitted a personnel complaint against Plaintiff for his unscheduled leave. Although Plaintiff "repeatedly" asked the assistant chief what type of substantiation would be sufficient, he received no response. Nearly four months after the Y2K weekend, Plaintiff was told that his employment would be terminated. Plaintiff asked for two additional days to obtain a report from his wife's doctors, but his employment was terminated. He filed a lawsuit alleging an FMLA violation.

After a ten-day trial, a jury awarded the plaintiff damages for lost wages and benefits of $ 395,394, liquidated damages of $300,000, attorney fees $305,292, and court costs $ 9,576. The Fifth Circuit upheld the decision but reversed and remanded for recalculation of the damage award, which the court ruled should have been offset by a retirement plan payout.

Luke demonstrates the importance of having a set procedure for handling FMLA leave requests as well as giving the employee the benefit of the doubt when leave is initially requested. While the FMLA is an easy statute to violate, having a set procedure in place for compliance will reduce potential liability.

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