We continue our two-part series on the FMLA and the recent changes to the regulations. This month's column addresses fundamental questions pertaining to an employer's obligations to reinstate FMLA returning employees to their previous positions; employee statutory notice requirements; qualifying reasons for FMLA leave; and the types of FMLA leave available to qualifying employees.
Question: What is the obligation of the employer to place an employee who returns to work (within a year) from leave under the Family & Medical Leave Act in a same or similar position he/she held prior to leave?
Answer: An employee's right to job restoration is one of the fundamental benefits of the FMLA. Generally, an employer must restore an employee returning from FMLA leave to the same or "equivalent position," that s/he held before leaving the job, with respect to working conditions, pay, benefits, and responsibilities. 29 U.S.C. § 2614(a)(1)(b); 29 C.F.R. § 825.214.
The DOL's regulations on the FMLA explain that an "equivalent position" is one that is "virtually identical" to the employee's former position, involving "substantially equivalent skill, effort, responsibility, and authority." 29 C.F.R. § 825.215(a).
However, not all employees are guaranteed job restoration upon return from FMLA leave.
For example, an employer is not required to restore a "key employee" (i.e., a salaried employee whose salary is within the top 10 percent of all the organization's employees working within 75 miles of the employee's worksite) to the same position held prior to FMLA leave if doing so would cause "substantial and grievous economic injury" to the employer's operations. 29 U.S.C. §§ 2614(b)(1)(a), (2); 19 C.F.R. §§ 825.216(e), 219(b).
Although the FMLA does not afford key employees job-restoration protection, an employer may not generally deny the key employee's FMLA leave request.
There is no precise test to determine whether a substantial and grievous economic injury or hardship exists as a result of job restoration. 19 C.F.R. § 825.218(c); See also Kephart v. Cherokee County, No. 99-1789, 2000 U.S. App. LEXIS 18924, at *17 (4th Cir. Aug. 4, 2000) (summary judgment in favor of an employer reversed because the employer failed to demonstrate that restoration of the employee would cause substantial and grievous injury).
Although no precise test exists, guidance is available to make this determination. For instance, the DOL's regulations explain that considerable factors may include an employer's ability to do without the employee on a temporary basis, cost of replacement and threats to the economic viability of the company. 19 C.F.R. § 825.218(b); See also Kephart, 2000 U.S. App. LEXIS at *18.
In addition, courts have held that minor inconveniences and costs incurred by an employer in the normal course of business do not constitute substantial and grievous economic injury. Id. In large part, employers must keep in mind that justification of the key-employee exemption may not be based simply on the threat of substantial and grievous economic injury that may result from the employee's absence, rather the focus is on whether the employee's restoration would cause such an injury. 19 C.F.R. § 825.218(a).
However, employers who anticipate using the key-employee exemption must make sure that they notify the key employee in advance of his/her status as a key employee, and also explain to the key employee that restoration may cause substantial and grievous harm, and therefore, restoration may not or will not occur. 29 U.S.C. § 2614(b); 29 C.F.R. § 825.219(a).
In addition to the key-employee exemption, employers are not required to restore any employee to the same or virtually similar position when:
1) The position no longer exists (29 C.F.R. § 825.216(a)(2));
2) The employee is no longer qualified for the position (29 C.F.R. § 825.215(b));
3) The returning employee is unable to perform an essential function of his/her position at the conclusion of FMLA leave (29 C.F.R. § 825.216(c));
4) The employee's shift has been eliminated or overtime decreased (29 C.F.R. § 825.16(a)(2));
5) The employee was hired for a specific term or for a discrete project and the term or project is over (29 C.F.R. § 825.216(b)) or;
6) The employee fraudulently obtains FMLA leave (29 C.F.R. § 825.216(d)).
In sum, employers are generally required to reinstate an employee returning from FMLA leave to the substantially same position held prior to leave; however, the law provides employers specific exceptions to the restoration obligations.
Nonetheless, in instances where an employer is faced with the decision of either restoring or denying restoration, it should be mindful to make sure it does so only after it has complied with not only the FMLA notice obligations, but also any additional compliance responsibilities under the ADA or other federal or state statutes. 29 C.F.R. § 825.702.
Question: If an employee calls in the same day for leave to take care of a sick family member, does this constitute proper notice of FMLA leave? We have an employee whose wife gets migraine headaches and he calls in to care for her at the last minute. Does this qualify as a FMLA situation?
Answer: In short, Yes.
However, in reaching this conclusion, let us flush out the seminal issues implicated by this question: statutory notice obligations; qualified reasons for FMLA leave; and the types of FMLA leave available to employees.
Upon providing proper notice to an employer, an employee may be eligible for FMLA leave to care for sick family members, such as a child, spouse, or parent. 29 U.S.C. § 2612(a)(1)(c). The amount of advanced notice that an employee must provide to trigger FMLA leave depends on whether the need for leave was foreseeable or unforeseeable. 19 U.S.C. § 2612(e); 29 C.F.R. § 825.302(a).
For example, when an employee can clearly foresee the need for FMLA leave (e.g., due to child-birth, adoption/child placement, or planned medical treatment for a serious health condition/ injury -- for either the employee or the employee's family member), the employee has an obligation to give at least 30-days' advance notice to the employer. 29 U.S.C. § 2612(e); 29 C.F.R. § 825.302(a).
If the need is foreseeable, but the employee cannot provide at least 30-days' notice (e.g., because of a lack of knowledge or change in circumstances), the law requires that the employee provide notice as soon as practicable. Id.
The FMLA also recognizes that there may be instances in which emergency leave is needed -- where the employee cannot approximate the timing of the need for leave. In these unforeseeable or emergency situations, the employee is still obligated to give notice to the employer, but may do so "as soon as practicable" under the facts and circumstances of the particular case, so long as s/he does so in compliance with the time prescribed by the employer's usual and customary notice requirements. 29 C.F.R. § 825.303(a).
Therefore, with respect to statutory notice requirements, an employee who requests FMLA leave on the same day leave is taken to care for a sick family member may satisfy the FMLA notice requirement if the employee either promptly notifies the employer, at the moment s/he became of aware of the need, or in a manner that complies with the employer's notice requirements. However, our inquiry does not end here.
Qualified Reasons for FMLA Leave -- Serious Health Condition Requirement
Sufficient notice involves providing the employer with both advanced timely notice, where practicable, and providing adequate details, facts, and reasons to establish the existence of a "serious health condition." 29 C.F.R. § 825.301(b); See also Petras v. IAP Worldwide Servs. Inc., No. 07-170, 2008 U.S. Dist. LEXIS 105193, at *31 (D. N.J. Dec. 23, 2008); Schober v. SMC Pneumatics, Inc., No. IP99-1285, 2000 U.S. Dist. LEXIS 12478, at *32-33 (S.D. Ind. Aug. 21, 2000).
Under the FMLA, a "serious health condition" is defined as "an illness, injury, impairment, or physical or mental condition that involves in-patient care (e.g., overnight stays in a hospital or medical facility) or continuing treatment by a healthcare provider. 29 U.S.C. § 2611(11); 29 C.F.R. §§ 825.112, 113, 114.
The FMLA regulations provide additional clarification of what constitutes a serious health condition. For instance, continuing treatment requires, among other things, that the employee have two or more visits to a healthcare provider within 30 days of the first day of incapacity. 29 C.F.R. § 825.115(a). Examples of incapacity include the inability to work, attend school or perform regular daily activities due to the serious health condition or treatment.
The regulations also explain that serious health conditions may be chronic, and thus, require periodic visits to a healthcare provider for treatment. Examples of chronic conditions include asthma, diabetes, and epilepsy. 29 C.F.R. § 825.115(c)(3).
While the law maintains a broad definition as to what is not considered a "serious health condition," -- for example, the common cold, the flu, ear aches, upset stomach, and headaches -- it also provides, and courts have confirmed, that recurring migraine headaches may be considered a serious health condition. 29 C.F.R. § 825.113(d); See also Murray v. U.S. Postal Serv., No. 1:04-CV-514, 2006 U.S. Dist. LEXIS 18112, at *12 (W.D. Mich. Apr. 5, 2006) (the court held that "migraine headaches may, in some cases, be both chronic and serious health conditions within the meaning of the regulations"); Ware v. Stahl Specialty Co., No. 97-0436, 1998 U.S. Dist. LEXIS 5506, at *9-11 (W.D. Mo. Apr., 9, 1998) (plaintiff's migraine headaches were certified as a serious health condition).
That said, if all other FMLA conditions are met, an employee who needs to care for a spouse suffering from migraines may qualify for FMLA leave. The employee must nonetheless provide adequate notice and sufficient facts to the employer so the proper determination can be made, by the employer, as to whether the migraines qualify as a serious health condition as provided for under the FMLA.
Types of FMLA Leave Available to Employees
Once an employee establishes the need for leave, an employer must properly designate the type of leave needed pursuant to the FMLA. There are three kinds of FMLA leave available to employees:
1) One block of leave, which totals 12 weeks or fewer (29 U.S.C. § 2612(a)(1); 29 C.F.R. § 825.200(a));
2) Intermittent leave, which allows for leave in separate periods of time due to a single illness or injury (e.g., leave of periods from an hour or more to several weeks (29 C.F.R. § 825.202(a), 203); and
3) Reduced leave schedule, which enables the employer to reduce the employee's normal work hours (e.g., from full-time to a part-time basis) (29 C.F.R. § 825.202(a)).
Hoffman v. Prof'l Med Team, 394 F.3d 414, 418 (6th Cir. 2005). Intermittent leave may be most appropriate when the health condition is chronic and incapacitating, such as with migraine headaches. 29 C.F.R. § 825.203(b)(2).
In the question presented here, although an employee taking intermittent leave to care for a spouse suffering from migraine headaches will not be able to provide the employer with notice of the exact dates on which intermittent leave is needed, under the law, the employee may simply notify the employer, as soon as practicable, that a medical condition exists that requires such leave. Therefore, such a situation is sufficient to qualify for FMLA leave.
Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer Rose in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.
Read Part I of this series, Relearning FMLA.