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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

FMLA Turns 20: Taking Leave, But Not Bowing Out

Twenty years after its enactment, the Family and Medical Leave Act remains vital and has been relied on by significant numbers of employees.  Minnesota has a number of other provisions mandating leave for employees in certain circumstances, but both employers and employees must take care to know and comply with the requirements to avoid difficulty.

The Family & Medical Leave Act (FMLA) turns 20 years old this month.  But, like some of its provisions allowing employees to take health-related leaves of absence from work, even its age is disputed.

The law was enacted by Congress in the first couple of weeks of the first term of President Bill Clinton, who signed the bill into law in early February 1993, 20 years ago this month.  But the law did not go into effect for six months for most covered employees and a year later for unionized businesses, unless their existing labor agreement expired sooner. Consequently, some view the law as being only 19, or perhaps 19and one-half years old today.

Regardless of this mini-controversy, the law has aged well.  It has, to be sure, been subject to some controversy in the political arena and the courts.  But, by and large, it is considered to be one of the more effective and well-accepted workplace laws, and studies indicate that the measure is used by at least one-sixth, about 16 percent, of eligible employees.

Recent Rulings

The vitality of the FMLA is reflected in a pair of recent rulings of the 8th Circuit Court of Appeals.  In Clinkscale v. St. Therese of New Hope,1 a Minnesota nursing home nurse, who suffered from an undiagnosed anxiety disorder, experienced a panic attack following her involuntary transfer to a different unit.  Apprehensive about working in the new job without any training for that position, she was characterized as “crying, shaking and generally distraught.”

After the human resources director told her to go home for the day and that an effort would be made to work out an arrangement, the nurse went to her doctor and obtained a note requesting a week off from work.  She delivered the note to her employer the next day and was given FMLA forms for her doctor to complete for a leave of absence.  Later that day, she was called by a human resources staffer and told that she had been terminated the previous day for abandoning the job because she left work and went home.  Two days later, the doctor returned the FMLA forms, asking for the employee to be given the rest of the week off because of anxiety and panic attacks.  The nursing home then fired her for “walking off the job” and filed a complaint with the Board of Nursing, alleging that the employee had refused work.

The employee sued for violation of her rights under the FMLA and for interference with the exercise of her FMLA rights.  Senior Judge David Doty of the District of Minnesota dismissed the case on summary judgment.  But the appellate court reversed and reinstated the case shortly before Thanksgiving in a decision written by Judge Diana Murphy of Minnesota.  The court began its analysis by observing that the employee’s diagnosed inability to work for a week, medications prescribed for her by a doctor, and a recommendation for therapy satisfied the threshold standard for the FMLA of experiencing a “serious health condition.”

The issue, therefore, was whether the employee could establish a prima facie claim of interference with her FMLA rights.  This required determining whether the employee gave notice to the employer of her need for an FMLA leave, a fact question reserved for determination by the trier-of-fact.  The FMLA requirement that notice be given “as soon as practicable,” (under 29 C.F.R. §825.302(c), generally within two business days of the employee’s knowledge of need for a leave) was satisfied because the doctor’s note was delivered within the two-day time period, which could lead a jury to reasonably conclude that the employee complied with the “practicable” provision of the statute.

The court also rejected the employer’s claim that the employee had never before suffered a panic attack and had not been previously diagnosed with any such disorder.  The employee’s “previously clear medical history” cannot preclude a subsequent FMLA claim when the “need for a medical leave arises unexpectedly.” The court further observed that raising the employee’s prior good health as a defense to granting a leave under the statute is “patently unreasonable and contrary to the purpose” of the FMLA.  Thus, the case was returned to district court to determine if the employee’s FMLA rights were violated or, alternatively, whether the employer interfered with the exercise of those statutory rights.

The 8th Circuit last year also addressed the FMLA in Marez v. Saint-Gobain Containers, Inc.2 Marez, a production supervisor in a Missouri-based bottle-manufacturing plant, had taken about a nine-week medical leave during the summer for her own illness and early the next year notified her supervisor that she would require an FMLA leave because of her husband’s upcoming surgery.  The supervisor had expressed irritation after her first leave request and she was fired less than 48 hours after notifying her supervisor she would need a second FMLA leave.

When recommending her for discharge, the supervisor cited various performance-related reasons and did not inform the three other members of the management team about her request for FMLA leave.  The employee introduced evidence that various other employees who had similar performance issues were not discharged.

The employee was awarded $206,500 in damages and an equal amount in liquidated damages.  Upholding the award, the appellate court invoked the “cat’s-paw” theory of liability, i.e., “if a non-decision maker performs an act motivated by a discriminatory bias that is intended to cause, and does proximately cause, an adverse employment action,” that imposes liability upon the employer.3

In these recent rulings, the 8th Circuit has followed its general pattern of using the burden-shifting standard of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), renowned for its use in other discrimination case law, in deciding FMLA cases where employer discrimination against the employee is alleged.  Under that approach, an FMLA claimant must first establish a prima facie case of entitlement. The employer then is given the opportunity to articulate legitimate business reasons for its action, which shifts the burden back to the employee to show that the employer’s position is pretextual.4

Despite these recent rulings favorable to employees, the 8th Circuit has not always been as beneficent to them.  In some recent cases from Minnesota, the appellate court has affirmed dismissal of FMLA claims on grounds of insufficient notice of leave, lack of constructive discharge of a quitting employee, and absence of retaliation among other recurring defenses that have been recognized in this Circuit as well as in other jurisdictions.5

The Clinkscale and Marez cases are the latest in a long series of court rulings, administrative actions, and occasional statutory tinkering that has occurred over the past few decades.  The FMLA’s birthday, whatever its actual age, provides an opportune time to examine some of its key features and how it and a myriad of other leave-related laws have affected employers and employees in Minnesota.

History & Hysteria

Some degree of hysteria has surrounded the FMLA’s history.  The act was originally conceived, no pun intended, in the 1980s to allow women to take time off from work for maternity and post-childbirth purposes.  The measure was enacted by Congress in 1991, but vetoed by the first President Bush, who deemed it too burdensome for businesses.

In the 1992 presidential campaign, the measure was strongly supported by then-candidate Clinton who promised to sign a new version of the FMLA if it were reenacted.  After his election, Congress, controlled by Democrats in both houses, passed the law again.  The bill reached Clinton’s desk on February 5, 1993, barely two weeks after he was inaugurated, and he signed it as the first main piece of legislation in his administration, subject to its staggered starting dates.

Fundamental Features

The law today remains quite similar to its original enactment, with a few new wrinkles added by agency interpretations, statutory amendments, and court rulings.  The fundamental features, which have been intact for the past two decades, include up to 12 weeks mandatory unpaid leave per year, either taken consecutively or intermittently, along with maintenance of the employee’s job and benefits during the leave and after it ends.6  An amendment in 2008 added provisions for military-related leaves of absence.  Under the FMLA, a leave may be used for:

  • The employee’s “serious health condition,” which is defined as an affliction that renders the employee unable to work and involves in-patient medical care or continuing medical treatment;
  • Care for a child, spouse, or parent with a serious health condition;
  • The birth or adoption of a child, or placement of a foster child;
  • A qualifying exigency relating to the employee’s spouse, child or parent who is on active military duty as covered by the act; or
  • Care for a seriously ill or injured spouse, child or next of kin who is in a covered military service, in which case the leave is limited to 26 weeks of leave in a 12-month period.

During the leave, the employee is entitled to maintain health insurance and benefits at the employee’s expense. The employee also must be allowed to resume the same or equivalent job with the same pay and benefits when the leave ends, although “key” employees, those in the top 10 percent of the salary scale, can be refused reinstatement if providing leave would pose “substantial and grievous economic injury to the operations of the employer.”7

The law is not all-inclusive.  When enacted—and still now—it applies only to employees who work for companies with 50 or more employees, have worked full-time or at least 1,250 hours per week in the past year, and have been continuously employed by the same employer for one year.8  These requirements cover about 25 percent of the overall U.S. work force.  Coverage also extends to nearly all state and local public sector employees, regardless of number of employees.  A few federal government employees are covered by the entire FMLA, while most of them are only covered under portions of the act.9

By 2000, more than 23 million employees, representing 16.5 percent of the workforce, reported having taken an FMLA leave in the prior 18 months.  More than half—54 percent—of those leaves were for ten days or fewer and only about 10 percent were for 60 days or longer.10

Slightly more than half, 52 percent, of employees took leave related to their own illness, 8 percent dealt with medical complications of pregnancy, 18.5 percent were to care for a newly born or adopted child or newly placed foster child, 11.5 percent to care for a sick child, 13 percent for sick parents, and 4 percent for a sick spouse.  The longest leaves of absence were those to care for a newly born or adopted child or newly placed foster child.11

While FMLA cases can be brought directly in federal or state courts, which have concurrent jurisdiction, employees also can bring charges before the Department of Labor (DOL), which oversees the measure.  In the last decade, the DOL has handled between 1,800 and 3,500 FMLA cases annually, with the number generally decreasing.  The agency finds a violation in roughly half of those cases, resulting in back wages to employees totaling between $1.5 million and $3.7 million per year, trending closer to the $1.5 million figure in the last several years.12  The downward trend likely reflects a better understanding of the FMLA requirements by human resources professionals and management personnel.

Reinstatement & Remedies

The remedy provisions of the law furnish formidable rights to employees.  The FMLA requirement that employees on leave be allowed to resume their jobs without reduction of pay or benefits or other adverse action aims at preventing retaliation against FMLA claimants.13  A parallel provision, 29 U.S.C. §2651, proscribes interference with the exercise of FMLA rights, discrimination for opposing a practice forbidden by the FMLA, and interference with FMLA proceedings or inquiries.14

The statutory remedies also are hefty.  They include money damages as well as equitable relief such as reinstatement and promotion.15 But emotional distress damages are not allowed.16 The act also mandates liquidated damages equal to the actual damages, subject to a defense of “good faith” and reasonable grounds to believe the employer’s action was not unlawful.17

The reinstatement remedy, however, may not fully extend to “key” employees, defined as those in “the top 10 percent” of the pay scale.  Because of the difficulty of temporarily replacing such employees, employers need not restore them to their prior positions upon return from FMLA leave if doing so would cause “substantial and grievous economic injury” to the employer.18

Attacks & Amendments

Although generally accepted by the mainstream, the FMLA was subject to some attacks during its early years.  In 1996, Republican presidential candidate Robert Dole urged rolling back certain provisions, and the measure was the topic of some minor political brouhaha for the next few years.  But Dole lost the presidential election to Clinton, the signatory of the FMLA, and the measure remained intact.  While Congress changed to Republican hands, it kept its hands off the FMLA for nearly a decade.

Late in Clinton’s second term, in June 2000, the DOL began a program permitting states to experiment with making unemployment compensation available to parents who take leave or quit their employment after the birth or adoption of a child.  None of the states participated in the program and it was dismantled in 2003.  California established a similar, more expansive program, effective in 2004, but based it on another founding mechanism.19 During the 2012 presidential race strategists briefly discussed revisiting this concept, but given the propensity of the congressional majority Republicans to cut rather than expand such programs, passage of such legislation on a national level seems unlikely.  Another DOL “experiment” could, however, be initiated without congressional approval.

In 2008, during the waning years of the second term of the second President Bush, the measure was expanded to cover military personnel and family members.  The statute was amended to bolster the rights of military members and their families by allowing up to 12 weeks annual leave for an “emergency” due to the deployment of an immediate family member in certain circumstances and up to 26 weeks to care for a family member injured in the military service.20  The DOL later added regulations fleshing out these provisions.21

Supreme Suits

Three FMLA suits have made their way to the U.S. Supreme Court, including one from the 8th Circuit.  In Ragsdale v. Wolverine World Wide, Inc.,22 the Court struck down a portion of a DOL regulation which provided that leave time would not be counted against an employee’s 12-week maximum unless the employer gave notice to the employee that it was being counted against the FMLA entitlement.  The employer had given the employee a 30-week leave before discharging the employee for exceeding the FMLA entitlement, but had not specified any of the leave to be covered by FMLA.  The employee sued, seeking 12 weeks additional leave denominated FMLA leave, along with reinstatement and back pay.  The lower court dismissed on summary judgment and the 8th Circuit affirmed.  The Supreme Court also affirmed the dismissal, holding that the DOL regulation was invalid as to the remedy sought, but did not decide whether the notice and designation requirement of the regulation was invalid.

The two other Supreme Court cases dealt with the issue of sovereign immunity under the 11th Amendment.  In Nevada Dept. of Human Resources v. Hibbs,23 a male public sector worker sought time off to care for his ailing wife.  The Court held that Congress had abrogated the 11th Amendment immunity of the states and that state employees could recover damages in federal court under the family care provision of the FMLA.

But last year, in Coleman v Court of Appeals of Maryland,24 the Court upheld holding states immune from damages under the FMLA’s self-care provisions.  Thus, state employees cannot take advantage of the leave provisions for their own illnesses, but can take time off under the act to care for their families.  The Court reasoned that the family care provisions were remedial, to address past and potential sex discrimination in the work place related to child birth and child care issues, which had historically disadvantaged women.

Mini Matters

The federal law has spawned mini-FMLA measures in a number of jurisdictions.  States such as neighboring Wisconsin, California, New Jersey, Maine, the District of Columbia, and the city of Seattle, among others, have enacted their own mini versions of the FMLA.  These usually provide coverage for employees who do not fall within the scope of the FMLA and, on occasion, give employees more extensive rights, sometimes including a portion of pay during their leave of absence.

The mini-measure in adjacent Wisconsin typifies these alternative laws.  That measure, Wis. Stat. §103.10, requires that employers with 50 or more “permanent” employees grant employees up to six weeks of unpaid leave per year for the birth or adoption of a child and up to two weeks annually for the care of a child, spouse, domestic partner, or parent.  The provision applies to employees who have worked more than 1,000 hours for that employer during the preceding 52 weeks and have been employed 52 weeks.

Minnesota does not have its own mini-FMLA.  The closest analogue, which preceded the enactment of the FMLA, is the Minnesota Parental Leave Act, Minn. Stat. §181.940, et seq.  Applicable to employers with 21 or more employees, it provides parents an unpaid leave of absence, not to exceed six weeks, after the birth or adoption of a child.  Another provision, §181.9412, allows parents to take up to 16 hours of unpaid leave per year to attend their children’s school activities.

An apparent difference between the federal and Minnesota laws is reflected in Hansen v. Robert Half International, Inc.,25 in which parenting leave was denied under the Minnesota statute because the employee did not specify the reason for the requested leave.  The appellate court noted that in order to trigger application of the FMLA, the employee need only provide the employer information about her health condition that makes it reasonably plain that the health condition is serious and is the reason for the absence.  But under the Minnesota Parenting Leave law, the employee is required to specifically request leave under the state act.26

But specificity was disposed with in a federal court parenting leave ruling late last year by Senior Judge David Doty.  In Kersten v. Old Dominion Freight Lines, Inc.,27 the employee was given a seven-week leave, one week longer than statutorily required, with a specific return-to-work date.  Her manager allowed her another week, at her doctor’s request.  But the company terminated her when she failed to return on the originally scheduled date.

Judge Doty ruled that the employee was entitled to the extended reinstatement date because the parties reached a “specific agreement” to that effect.  He reasoned that “no specific language is required to extend leave” because imposing such a requirement would undermine the statutory purpose “to provide pregnancy leave for a term mutually agreed upon by the employer and employee.”

FMLA Finale

After some two decades, the FMLA has been, and continues to be, an important law for employers and employees alike.  As it celebrates its birthday, whatever its age, the law and its prototypes are likely to continue to be significant forces in the workplace in Minnesota as well as the rest of the country.

 

Leave Litany

Minnesota has a litany of other leave-related laws that grant employees time off from work for various purposes.  Some of these include:

  • Sick or Injured Child Leave: Employees who have worked for an employer with 21 or more employees for more than a year and averaged half-time or more must be allowed to use their personal sick time to care for a sick or injured child.28
  • Election Leave: Employees have the right to be absent from work, without loss of pay, “for the time necessary” to vote in Minnesota’s primary or general election, an election to fill a vacancy for United States Senate or House, or to fill a vacancy for State Senator or State Representative.29 The measure, until amended in 2010, required leave only during the “morning” of election days, but that restriction has now been dropped.
  • Military Paid/Unpaid Leave: Employees of state and local governments who are members of the Minnesota National Guard or military reserves are entitled to a leave of absence, “without loss of pay, seniority status, efficiency rating, vacation, sick leave, or other benefits” for up to 15 days each calendar year.30  In addition, under Minn. Stat. §192.261, service members who are engaged in active service work, and “during convalescence from an injury or disease incurred during active service” are entitled to a “leave of absence from the officer’s or employee’s public office or employment without pay during such service, with right of reinstatement … .”  The unpaid leave of absence, however, “may not extend beyond four years plus such additional time in each case as such officer employee may be required to serve pursuant to law.”Unless it would be “unduly disruptive to the operations of the employer,” unpaid leave is required to allow immediate family members of soldiers being deployed to attend send-off and homecoming ceremonies.31 Up to ten days unpaid leave must be given to immediate family members of soldiers killed or injured in active service.32
  • Bone Marrow and Organ Donation Leave: Certain employees must be afforded a paid leave of absence of up to 40 hours to donate bone marrow, organs, or partial organs under Minn. Stat. §§181.945 and 181.9456.
  • Handbooks and Union Contracts: Leave of absences also may be granted pursuant to policies adopted unilaterally by employers, often in nonbinding handbooks.  Collective bargaining agreements between labor unions and management also may provide for leaves that differ or are more extensive than those required by statutes, such as for bereavement, birthdays, or miscellaneous personal purposes.

Marshall H. Tanick is an attorney with the law firm of Hellmuth & Johnson, PLLC, with headquarters in Edina.  He is certified by the Minnesota State Bar Association as a Civil Trial Specialist and represents employers and employees in a variety of workplace-related matters, including issues arising under the FMLA.

Teresa J. Ayling is an attorney with law firm of Hellmuth & Johnson, PLLC, practicing in the area of labor and employment law and representing employers and employees in a variety of workplace related matters.  She is certified as an Employment and Labor Law Specialist by the Minnesota State Bar Association.

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