Family and Medical Leave Discrimination

A. Who Is A Covered Employee?

Under the FMLA, you are eligible to take leave if you: (1) worked for your employer for at least 12 months, (2) worked for your employer for at least 1,250 hours during the 12 month period before the leave. 29 U.S.C. § 2611(2)(a).

Unlike most other employment civil rights laws, the FMLA does not cover new employees during the first year of work with a new employer. If you are covered in your current job, having been at the job more than 12 months, and expect to need to take FMLA leave in the 12 months after a job change e.g. if you are expecting the birth of a child, for example, or have an ongoing serious health condition) you should be especially careful.

The months of the 12 month work requirement do not need to be consecutive. The 12 month and 1,250 hour requirements are calculated as of the time the requested leave would commence, not as of the time of the request or the time of termination if the employer later terminates the employee in retaliation for having taken leave. See 29 C.F.R. § 825.100(b)-(d); Butler v. Owens-Brockway Plastic Prods., Inc., 199 F.3d 314 (6th Cir. 1999) (holding that the plaintiff must be FMLA-eligible at the time of the requested leave, not at the time of the adverse action, in this case a termination).

If you request FMLA leave, your employer must notify you of your eligibility for taking such leave. 29 C.F.R. § 825.300(b). If your employer mistakenly confirms your eligibility, or does not inform that you are not eligible before the leave begins, the employer will likely lose its right to challenge your eligibility. 29 C.F.R. § 825.300(e). However, several courts have held this regulation to be invalid, as it impermissibly seeks to expand the statutory definition of eligible employees. See, e.g., Woodford v. Community Action of Greene County, Inc., 268 F.3d 51, 56-57 (2d Cir. 2001). Other courts found an ineligible employee could still prevail under the doctrine of equitable estoppel if the employer failed to inform the employee of the FMLA’s requirements for eligibility. See, e.g., Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 493-94 (8th Cir. 2002).

B. Who Is A Covered Employer?

The FMLA covers employers who have “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or proceeding calendar year.”  29 U.S.C. § 2611(4).  The workweeks do not need to be consecutive, and the employees must simply be on the employer’s payroll, regardless of whether they are actually paid in a given week. 29 C.F.R. § 825.105.

At least 50 of the employer’s employees must be located at sites within 75 miles of the worksite of the employee who seeks FMLA leave. See 29 U.S.C. § 2611(2); 29 C.F.R. § 825.110(a).  In companies that have offices in multiple locations, some employees may be eligible for FMLA leave (i.e., those employees who work within a 75-mile radius of at least 49 other employees), whereas others, those who do not work within 75 miles of at least 49 other employees, may not be eligible.

An “employer” also includes any person who acts in the interest of an employer.  Persons acting in the interest of the employer may therefore be individually liable for any violation of the FMLA.  See 29 C.F.R. §§ 825.104(a), (d).

C. What Benefits Does The FMLA Provide To Employees?

The FMLA provides up to 12 weeks of unpaid leave during any 12-month period to attend to your own or an immediate family member’s serious health condition, the birth or adoption of a child, and other matters discussed below. 29 C.F.R. § 825.200(a).  This leave is typically taken on one consecutive block, but may also be taken on an intermittent basis or a “reduced schedule” basis where medically necessary, which means that the employee would take a day of leave from time to time, whenever required for treatment or recuperation. For example, an employee might take intermittent leave to attend periodic doctor’s appointments or chemotherapy treatments. See 29 C.F.R. § 825.202.

FMLA leave is unpaid. However, if an employee has accrued paid vacation or sick leave available, he or she may use this leave during a portion of the FMLA leave (provided that, for sick leave, the health condition otherwise meets the employer’s normal criteria for use of sick leave). An employer can also require than an employee with accrued paid time off use that accrued leave during his or her period of FMLA leave. See 29 C.F.R. § 825.207(c).

It is critical to provide your employer with notice that you will need to take leave if at all possible. For a foreseeable leave period based on a planned medical treatment, an employee must provide an employer with notice of a request for leave at least 30 days before the date the leave is to begin. If the leave will begin in less than 30 days, the employee should give notice as soon as practicable. See 29 U.S.C. § 2612(e); see also Haile-Iyanu v. Central Praking System of VA, Inc., 2007 WL 1954325, at *6 (D.D.C. 2007) (denying defendant’s partial motion to dismiss where plaintiff returned to work from his herniated disk injury and informed his employer that he “was required to take intermittent leave for his serious medical condition” and would need such leave for further medical treatment).  For unforeseeable medical leave, an employee normally will be required to abide by the employer’s typical notice or call-in requirements for employees seeking to use regular sick leave, absent unusual circumstances. See 29 C.F.R. § 825.303(c).

The employee does not need to specifically mention the FMLA, but must explicitly inform his or her employer that the request to take time off is related to a serious health condition or one of the other reasons covered by the FMLA. See Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995) (The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.). Merely telling your employer that you are “sick” is not sufficient.  Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001).

1. Your Own Medical Needs
   If you are an eligible employee, you may take FMLA leave because of your own serious health condition:  “an illness, injury, impairment, or physical or mental condition” that involves either (1) “inpatient care in a hospital, hospice, or residential medical care facility,” or (2) “continuing treatment by a health care provider.”  29 U.S.C. § 2611(11).  “Inpatient care” –  an overnight stay in a medical care facility – includes any period of incapacity (inability to work, attend school, or perform other regular daily activities due to a serious medical condition or recovery therefrom) or any subsequent treatment in connection with the inpatient care.  See 29 C.F.R. § 825.114.A serious health condition involving “continuing treatment by a health care provider” is
   defined as:
   1. A period of incapacity of more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves: (a) treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services e.g., physical therapist) under orders of, or on referral by, a health care provider; or (b) treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.  The requirement for treatment by a health care provider means an in-person visit; the first (or only) in-person treatment visit must take place within seven days of the first day of incapacity. See 29 C.F.R. § 825.115(a)(1)-(3).
   2. Any period of incapacity due to pregnancy, or for prenatal care, even if the absence does not last more than three days, and even if the employee or immediate family member does not receive treatment from a health care provider during the absence e.g., due to severe morning sickness), even if the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. See 29 C.F.R. § 825.115(b), (f), 29 C.F.R. § 825.120.
   3. Any period of incapacity or treatment due to a chronic serious health condition (a condition that requires at least twice-yearly visits for treatment by a health care provider, continues over an extended period of time, or causes episodic periods of incapacity), even if the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. See 29 C.F.R. § 825.115(c), (f).
   4. A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective e.g., Alzheimer’s or the terminal stages of a disease). See29 C.F.R. § 825.115(d).
   5. Any period of absence to receive multiple treatments from a health care provider or provider of health care services either for restorative surgery after an accident or injury, or for a condition that would likely result in a period of incapacity of more than three days in the absence of medical intervention e.g., chemotherapy treatments for cancer).  See 29 C.F.R. § 825.115(e).
   6. Examinations to determine if a serious health condition exists and to evaluate that condition.  See 29 C.F.R. § 825.113(c).

   A “serious health condition” does not include minor medical needs such as routine examinations; treatment that can be initiated on your own without a visit to a health care provider (e.g., bed rest, taking over-the-counter medications); common ailments such as a cold, the flu, upset stomach, routine dental care, etc., unless these issues become severe enough that they meet one of the above definitions of “serious health conditions”. See 29 C.F.R. §§ 825.115(a)-(e). Treatment for substance abuse (as opposed to absence due to substance abuse) may qualify as a serious health condition if the above requirements are met.  See 29 C.F.R.  § 825.119(a). Likewise, mental illness or allergies may be serious health conditions if the above requirements are met. See 29 C.F.R. § 825.113(d).

2. Medical Needs of your Immediate Family
   An eligible employee may also take FMLA leave to care for an immediate family member (i.e. spouse, child, or parent) with a serious health condition, as described above. See 29 U.S.C. § 2612(a)(1)(c).An eligible employee may also take FMLA leave for “maternity leave” or “paternity leave” — that is, to care for or spend time with a newborn baby or child recently placed through adoption or foster care. Leave to care for or spend time with a new child may be taken any time within the first year after the child’s birth or placement. See 29 U.S.C. § 2612(a)(1)(a), (b); 29 C.F.R. § 825.120.
3. Military-Related Leave
   As of January 16, 2009, an employee may take FMLA leave when there is a “qualifying exigency” arising from the fact that a spouse, parent, or child is on or has been called to active duty.  A “qualifying exigency” caused by the deployment or impending deployment of a member of the military includes the following situations:
   1. Short-notice deployment: An employee may take leave for up to 7 calendar days to take care of any issue arising from the fact that a family member is notified of a call or order to active duty 7 or fewer days before scheduled deployment.  29 C.F.R. § 825.126(a)(1).
   2. Military events and related activities: An employee may take leave to attend any official ceremony, program, event, family support or assistance program, or informational briefing sponsored by the military relating to an active-duty family member. 29 C.F.R. § 825.126(a)(2).
   3. Childcare and school activities: Where the needs arise from the active-duty status of a family member, an employee may take leave to arrange for alternative childcare, provide childcare on an immediate-need (but not routine) basis, to make alternative school arrangements, or to attend meetings with teachers, counselors, etc. 29 C.F.R. § 825.126(a)(3).
   4. Financial and legal arrangements: When these must be changed, for example by adding a signatory to an active duty member’s account, an employee is entitled to leave. 29 C.F.R. § 825.126(a)(4).
   5. Counseling: Leave may be taken to attend counseling by a non-healthcare provider, such as a social worker or therapist, for the employee, the service member, or an immediate family member of the service member. 29 C.F.R. § 825.126(a)(5).
   6. Rest and recuperation: A family member may take up to 5 days of leave for each instance when an active-duty military member is home from deployment for short-term, temporary rest and recuperation leave. 29 C.F.R. § 825.126(a)(6).
   7. Post-deployment activities: An employee may take leave to attend ceremonies, briefings, etc. sponsored by the military that occur any time within 90 days of the end of the service member’s active duty status, or to address issues arising from the death of an active-duty service member. 29 C.F.R. § 825.126(a)(7).
   8. Additional activities: An employee may take leave for any other issues arising from the active duty status of a family member if the employer and employee agree to the terms of the leave. 29 C.F.R. § 825.126(a)(8).

   An employee may also take FMLA leave to care for a service member with a “serious injury or illness,” where the employee is the parent, spouse, child, or next of kin of the injured service member. This may be done when: (a) is a current member of the Armed Forces or is on the temporary disability retired list; (b) has suffered a serious injury or illness in the line of active duty; and (c) is undergoing medical treatment, recuperation, therapy, or is otherwise in outpatient status due to the illness or injury.  Service members who are on the temporary disability retired list for any other reason are also covered. Qualified employee relatives of former members of the Armed Forces or those on the permanent disability retired list, however, are not covered by this regulation.  For purposes of the regulation, a “serious injury or illness” is one that may leave the service member “medically unfit to perform the duties of his or her office, grade, rank or rating.”  See 29 C.F.R. §825.127(a)(1).

D. What Happens To Benefits During Leave, And What Happens When You Return?

During FMLA leave, an employer must continue to maintain the employee’s health benefits coverage under any group health plan, on the same terms coverage would have been provided had the employee not taken leave. See 29 U.S.C. § 2614(c)(1); 29 C.F.R. § 825.209. An employee must continue to pay his or her own portion of the health care premium. If, following a period of FMLA leave, the employee fails to return to work for the employer, the employee may be required to repay the employer for the employee’s health benefits during the period of leave.  See 29 C.F.R. § 825.213(a).

An eligible employee who takes FMLA leave must be restored to his or her previous position, or to an equivalent position with equivalent pay, benefits, and other conditions of employment, upon his or her return from leave. See 29 U.S.C. § 2614(a)(1). However, he or she does not have an absolute right to job restoration, if he or she would have been terminated, demoted, transferred, etc., absent the FMLA leave. For example: (1) an employer may terminate an employee for poor performance, misconduct, or other legitimate reason even if the employee is out on FMLA leave or has recently returned from FMLA leave, so long as the employee’s FMLA leave did not contribute to the termination decision; (2) an employee may be subject to termination during a workplace reduction-in-force (“RIF”) while he or she is out on FMLA leave, but the employer must demonstrate that the employee would have been terminated notwithstanding the FMLA leave (e.g., if the RIF was performed according to seniority and the employee had little seniority); (3) if a shift has been eliminated completely, the employer is not obligated to restore the employee to that same shift; (4) the employer may terminate an employee if the employee was hired for a specific term and that term has expired.  A RIF may not be used as pretext to retaliate against an employee for asserting FMLA rights. Xin Liu v. Amway Corp., 347 F.3d 1125, 1136 n.11 (9th Cir. 2003).

An employer may deny job restoration to certain highly compensated “key” employees (employees whose salaries are among the highest 10% for that employer within 75 miles of the employee’s worksite) if such denial is necessary “to prevent substantial and grievous economic injury to the operations of the employer.” See 29 U.S.C. § 2614(b). An employer must give notice to a key employee before he or she takes FMLA leave that he or she may not be eligible for job restoration after his or her FMLA leave, if the employer intends to subsequently deny job restoration to the key employee. See 29 C.F.R. § 825.216(b).

E. The FMLA Prohibits Retaliation

The FMLA prohibits retaliating against an employee for having taken or requested FMLA leave. See 29 U.S.C. § 2615 (an employee would also be covered for having engaged in other forms of “protected activity,” such as filing an FMLA-related charge or giving information or testimony related to possible FMLA violations).  Retaliation occurs, for example, when an employer allows an employee to take leave but then terminates or otherwise discriminates against the employee because of the FMLA leave or FMLA leave request.

To make out a prima facie case of FMLA retaliation, an employee must show that she engaged in a protected activity under the statute; that she was adversely affected by an employment decision; and that the protected activity and the adverse employment action were causally connected. SeeGleklen v. Dem. Cong. Camp. Comm., Inc., 199 F.3d 1365, 1368 (D.C. Cir. 2000). Causal connection between the employee’s protected activity and the subsequent adverse employment action is typically shown circumstantially, by the temporal proximity between the two events.  Causal connection may also be shown through comments by the supervisor or other deciding official suggesting that they were upset or frustrated by the plaintiff’s FMLA leave –- e.g. “Your leave left more work for the rest of us,” or “I can’t believe you’d take leave at this important time.”

Once the employee has made out this prima facie case of retaliation, the employer must advance a legitimate business explanation for why it took the adverse action against the employee. The employee then bears the ultimate burden of demonstrating that the employer’s justification is false. SeeReeves v. Sanderson Plumbing, 530 U.S. 133, 148 (2000) (plaintiff may prevail by demonstrating that employer’s asserted justification for termination is false or unworthy of credence, without independent evidence of unlawful discrimination).

F. Enforcement And Remedies

An employee seeking redress for a violation of the FMLA may bring a lawsuit in federal or state court. See 29 U.S.C. § 2617(a)(2). The lawsuit must be filed within 2 years of the last event constituting the alleged violation, or within 3 years if the violation was willful. See 29 U.S.C. § 2617(c). There is no administrative exhaustion requirement for FMLA suits. See 29 U.S.C. 2617(a)(2); 29 C.F.R. 825.400.

The employer may be liable for the employee’s lost wages, salary, benefits, or other monetary losses, plus interest.  Additionally, the employer may be liable for an additional liquidated damages amount equal to the amount of the employee’s actual losses plus interest.  The court may also issue appropriate equitable relief, such as reinstatement or promotion. See 29 U.S.C. § 2617(a)(1). Attorney’s fees and costs are also available to a prevailing plaintiff. See 29 U.S.C. § 2617(a)(3).

Unlike in most discrimination statutes such as Title VII or the ADA, punitive damages and damages for emotional distress are not available under the FMLA. See, e.g., Farrell v. Tri-Country Metro. Transp. Dist. of Or., 530 F.3d 1023, 1025 (9th Cir. 2008). As a result, an employee’s damages under the FMLA will almost always be determined by his or her out-of-pocket financial losses. If an employee is terminated in a manner that violates the FMLA, but then finds a job with the same or higher compensation soon thereafter, he or she may have a very good FMLA claim but very low damages –- even though the violation is fairly clear, the case may therefore not be worth taking to litigation.

An employee may also file an administrative complaint regarding a violation of the FMLA with the Department of Labor. The Secretary of Labor may file itself file suit against employers who have violated the FMLA (although in practice this is fairly rare). See 29 U.S.C. § 2617(b).

G. State And Local Laws

The District of Columbia and several other states have local FMLA-equivalent state laws. You should consult your local or state statutes, as they may contain stronger protections for you than the FMLA does. The District of Columbia Family Medical Leave Act, D.C. Code Ann. § 32-501, for example, contains more expansive protections of employees than the FMLA:

1. Under the D.C. FMLA, an eligible employee may take up to 16 weeks of leave during any 24-month period. See D.C. Code Ann. § 32-502 (a) and 32-503(a).
2. The D.C. FMLA covers any business employing 20 or more employees (compared to 50 or more under the FMLA). See D.C. Code Ann. §§ 32-516(2), 32-501(2).
3. Under the D.C. FMLA, you are eligible for protected leave if you have worked one year without a break in service (excluding regular sick, vacation, and personal days) and have worked 1,000 or more hours for your employer in the previous 12-month period (compared to 1,250 hours under the federal law). See D.C. Code Ann. § 32-501(1).
4. The D.C. FMLA allows you to request leave because of the serious medical condition of any “family member,” a category which is much more expansive than only a spouse, parent, or child as under the FMLA:  “family member” includes any blood relative, any relative by marriage, and any person with whom the employee has lived within the past year and with whom the employee maintains a committed relationship. See D.C. Code Ann. § 32-501(4).

If you believe that you have experienced discrimination for exercising your rights under FMLA law, contact the experienced lawyers at Katz Banks Kumin for an evaluation of your case with no further obligation.