Making Sense( And Use) Of The Family And Medical Leave Act

The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601 et seq., is a complex but significant statute. The law is a valuable tool in disability cases, but can be used very effectively in other employment situations where the criteria are met. The FMLA provides 12 workweeks of unpaid leave to eligible employees for certain family and medical reasons. The employer must maintain the employee's existing health insurance coverage during the leave and must reinstate the employee to the same or equivalent position at the conclusion of the FMLA leave.

The FMLA qualifying criteria are generally much broader than that of the Americans With Disabilities Act (ADA). In many cases where an individual may not meet the strict criteria of being "disabled", as defined by the ADA, that same individual may qualify as having a ‘serious health condition", as defined by the FMLA. Significantly, the FMLA is a strict liability statute that does not require the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Bachelder v. America West Airlines, 259 F.3d 1112 (9th Cir. 2001).[1]

The remedies available under the FMLA are also generous. Like other statutes, the FMLA remedies include the payment of wages, employment benefits and other compensation denied or lost to an employee because of a violation. But the FMLA also provides for liquidated damages, in an amount equaling lost wages and benefits. Unlike punitive damages under the ADA or Title VII, liquidated damages are awarded unless the employer can establish that the violation was in good faith and that it had reasonable grounds for believing it had not violated the Act. The FMLA also has a statutory provision for attorney's fees and costs. 29 CFR §825.400.

The Department of Labor's Wage and Hour Division has issued Rules and Regulations implementing the FMLA, which can be found at 29 CFR Part 825. As usual, the regulations are complex, but it is important to become familiar with them if you are considering litigating a violation of the FMLA.

Who Is Covered By The FMLA?


Private employers who employ 50 or more employees in at least 20 or more calendar workweeks in the current or preceding calendar year are covered by the Act. Also covered are public agencies, as defined by the Fair Labor Standards Act (FLSA), 29 U.S.C. 203(x). 29 CFR §825.104.


In order to be eligible for FMLA leave, an employee must have been employed for at least 12 months prior to the leave, though the months need not be consecutive. 29 CFR §825.110(b). An employee must also have been employed for at least 1,250 hours during the 12 month period immediately preceding the start of the leave. 29 CFR §825.110(a). These hours are calculated using the principles established by the FLSA. 29 CFR §825.110(c). Overtime hours can be included in the calculation, but the employer must have been aware of and consented to the overtime hours. 29 U.S.C. §2611(2)(C); Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414(9th Cir. 1981). Consistent with the principles established by the FLSA, paid vacation, personal or sick leave, holidays, unpaid leave, or periods of layoff are not included in calculating the !,250 hours for eligibility under the FMLA. If the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee's eligibility. If the employer fails to advise the employee whether s/he is eligible for the leave prior to the date the requested leave is to begin, the employee is deemed eligible and the employer may not then deny the leave. 29 CFR §825.110(d).

Since many employees who claim FMLA entitlements have some history of medical leaves of absence, those employees will sometimes not have worked the requisite 1,250 hours in the year preceding the leave and will not be eligible for FMLA leave. It is important to determine whether your client is eligible for FMLA leave by carefully calculating the precise number of hours he or she worked in the 12 months immediately preceding the requested FMLA leave.

When Can An Eligible Employee Take FMLA Leave?

An eligible employee can take FMLA leave due to a "serious health condition" that makes the employee unable to perform the functions of his/her job. 29 CFR §825.112(a)(4). The Act also provides for leave for the birth of a child, placement of an adopted child or foster care child, and to care for the employee's spouse, child or parent with a serious health condition. 29 CFR §825.112(a)(1)(2)(3).

A "serious health condition" is a physical or mental illness, injury or impairment that involves inpatient care or continuing treatment by a health care provider. 29 CFR §825.114(a)(2). "Continuing treatment" is defined as:

i) A period of incapacity of more than 3 consecutive calendar days that involves ongoing treatment of a health care provider;

ii) Any period of incapacity due to pregnancy or for prenatal care;

iii) Any period of incapacity or treatment due to a chronic serious health condition;

iv) A permanent or long term period of incapacity due to a condition for which there is no effective treatment; or

v) A period of absence to receive multiple treatments for certain conditions.

29 CFR §825.114(a)(2).

Generally, it is much easier to establish a "serious health condition" for purposes of the FMLA than a "disability" under the ADA. For example, in Navarro v. Pfizer Corp., 261 F.3d 90 (1st Cir. 2001), the First Circuit reversed summary judgment finding that the duration of the disability is not as important under the FMLA as it is under the ADA. The court reasoned that the need for the leave might be over before it could be determined that the disability is of sufficient duration. Also, a finding of disability under the ADA triggers a panoply of rights and responsibilities while the FMLA involves a maximum of twelve weeks of unpaid leave.

The FMLA definition of "health care provider" is broad and includes doctors, chiropractors, nurse practitioners, clinical social workers, midwives, and Christian Science practitioners. 29 CFR §825.118. An employee is unable to perform the functions of his/her position where his/her health care provider has found that s/he is either unable to work at all, or unable to perform any one of the essential functions of the position within the meaning of the ADA. 29 CFR §825.115.

How Does The FMLA Correlate With The ADA And Other Laws?

Designation of leave as FMLA qualifying does not block the disabled employee's greater rights under the ADA or comparable state law. The leave provisions of the FMLA "are wholly distinct from the reasonable accommodation obligations of employers covered under the ADA . . ." An employer must provide leave under whichever statutory provision provides the greater rights. When an employer violates both the FMLA and a discrimination law, an employee may be able to recover under either or both statutes, though double relief may not be allowed for the same loss. 29 CFR §825.702(a).

An employer may not require an employee to take a job with a reasonable accommodation in lieu of FMLA leave. An employer may not change the essential functions of a job in order to deny FMLA leave. 29 CFR §825.702(d)(1). An employee who is entitled to worker compensation benefits may also be entitled to FMLA leave, in which case the benefits and leave may run concurrently. After returning to work from an FMLA leave, the disabled employee has those rights granted under the ADA and comparable state law. 29 CFR §825.702(d)(2).

How Much Leave Can Be Taken?

An eligible employee may take up to 12 workweeks of FMLA leave during "any 12-month period." The 12-month period is calculated, at the discretion of the employer, using one of four methods:

1) the calendar year;

2) any fixed 12-month leave year;

3) the 12-month period measured forward from the date the leave commences; or

4) a "rolling" 12-month period measured backward from the date an employee uses any FMLA leave.

Once the employer chooses one of the above four methods, it must apply that method consistently to all employees. The employer must provide 60 days notice to all employees before changing the method for calculating the 12-month period. 29 CFR §825.200(d)(1).

It is important to distinguish between the two calculations that should be done in any FMLA case. The first calculation is to determine eligibility, i.e., whether the employee has worked 1,250 hours in the year preceding the FMLA leave. The second calculation is to determine the 12-month period during which the employee may take up to 12 weeks of FMLA leave.

What Kind Of Leave Does The FMLA Permit?

The FMLA provides for continuous leave, intermittent leave, or a reduced schedule leave. 29 CFR §825.203(a). Intermittent leave is defined as "leave taken in separate period of time due to a single illness or injury, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks." 29 CFR §825.800. A reduced schedule leave is defined as "a leave schedule that reduces the usual number of hours per workweek or hours per workday, of an employee." 29 CFR §825.800. This is commonly known as part-time work and is a valuable tool for many employees who suffer from a serious health condition. The employee with a serious health condition can take intermittent leave and/or a reduced schedule leave when "medically necessary". 29 CFR §825.203.

Whose Responsibility Is It To Designate The Leave as "FMLA Leave"?

Employees need not specifically request leave pursuant to the FMLA, nor need they even mention the FMLA in their leave request. It is the employer's responsibility to designate the leave as FMLA leave, and to notify the employee that the leave will be "charged" as FMLA leave. If the employer has the requisite knowledge to determine that an employee has requested, or has begun, leave for an FMLA reason, the employer must designate the leave as FMLA leave at that time. The employer may not designate leave as FMLA leave retrospectively, unless the employer does not learn of the reason for the leave until the employee returns to work, or the employer is awaiting medical certification from the employee's doctor. 29 CFR §825.208. however, if the need for FMLA leave is foreseeable, the employee must give the employer 30 days advance notice before the leave begins. 29 CFR §825.302(a).

The employee must cooperate in the FMLA process and provide the employer information regarding his/her medical condition. In Bailey v. Southwest Gas Co., 275 F.3d 1181 (9th Cir. 2002), the plaintiff's FMLA claim failed because she did not have a serious health condition, she never requested FMLA leave, and she would not have taken the leave had it been offered.

The United States Supreme Court invalidated a portion of 29 CFR §825.700, the regulation that provides, "[i]f an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement." Ragsdale v. Wolverine World Wide, Inc., 122 S. Ct. 1155 (2002). The Court held that the regulation was invalid to the extent that an employer would automatically be burdened with providing 12 more weeks of leave, but did not address whether the notice requirements were valid or whether other means of enforcing a notice requirement might be consistent with the FMLA.

What Verification Can An Employer Require For FMLA Leave?

An employer may require that an employee's request for FMLA leave be supported by medical certification provided by the employee's health care provider. The employer, however, must provide written notice that it requires such a medical certification. 29 CFR §825.305. When the employee provides the medical certification signed by his/her health care provider, the employer may not request additional information from the health care provider. However, with the employee's permission, a health care provider representing the employer may contact the employee's health care provider for purposes of clarification and to determine the authenticity of the medical certification. 29 CFR §825.307(a).

Sometimes, the employer will dispute the validity of the employee's medical certification. In that case, the employer is entitled to obtain a second opinion, at the employer's expense, from a health care provider who is not employed on a regular basis by the employer. If the employee's health care provider and the second opinion differ, the employer is entitled to a third opinion by a jointly approved health care provider. The third opinion is final and binding. 29 CFR §825.307(c).

What Can The Employer Require When The Employee Is Ready To Return To Work From FMLA Leave?

An employer may require an employee who has taken FMLA leave for his/her own serious health condition to provide a medical certification that she is able to return to work (i.e., "fit-for-duty"). The employer must apply this requirement uniformly to all employees who are similarly situated. The employer may only require the employee provide a fit-for-duty certification with regard to the particular health condition for which she took FMLA leave. The fit-for-duty certification need only be a "simple statement" of the employee's ability to return to work. 29 CFR §825.310(c). The employer, with the employee's permission, may obtain clarification from the employee's health care provider, but may not obtain additional information. Where the employee's health care provider has authorized the employee as fit-for-duty, the employer may not obtain second and third medical opinions regarding the employee's status as "fit-for-duty". 29 CFR §825.310(e).

What Rights Does The Employee Have Upon Returning To Work From FMLA Leave?

Upon his/her return from FMLA leave, an employee has the right to be restored to his/her original position or to an equivalent position with equal pay, benefits and other terms and conditions of employment. The FMLA's legislative history explains that the standard for evaluating job "equivalence" under FMLA parallels Title VII's general prohibition against job discrimination (42 U.S.C. 2000e-2(a)(1)), and is intended to be interpreted similarly. In stark contrast to the ADA, the FMLA requires that an employer reinstate an employee returning from FMLA leave to the same or equivalent position even where no vacancy exists. The statute does not permit an employer to permanently replace an employee while on FMLA leave, or to restructure a job and then refuse to reinstate the employee on the ground that no position exists. 29 CFR §825.214(a).

In Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757 (5th Cir. 2001), the Fifth Circuit reversed summary judgment for the employer where the plaintiff, upon returning from FMLA leave, was offered the identical position but on a different shift. The Court found that under those circumstances whether she was offered the same or equivalent position was a jury question. The Court noted that the Department of Labor Guidelines do not treat different shifts involving the same duties and pay as equivalent jobs.

A limitation on the employee's right to be reinstated to the same or equivalent position upon returning from FMLA leave is where an employer can demonstrate that the employee would not otherwise have been employed. An example is where the employer has a department-wide layoff affecting the employee's former position. Another example is where the employer learns of misconduct by the employee that would have resulted in discharge even if the employee were not on FMLA leave. 29 CFR §825.216(a).

The employee who asserts his/her rights under the FMLA may not then be discriminated against for having exercised his/her rights. This provision prohibits the employer from discharging the employee, or considering an employee's use of FMLA leave as a negative factor in deciding to take any employment action, including promotions or discipline. The regulations specifically provide that FMLA leave cannot be counted under an employer's "no fault" attendance policy. 29 CFR §825.220(c).

What Are The Penalties To An Employer Who Is In Violation Of The FMLA?

Employers violating the FMLA are subject to a broad range of penalties including:

a) wages, employment benefits, or other compensation denied or lost by reason of the violation, or where no such tangible loss has occurred, any actual monetary loss sustained by the employee as a direct result of the violation, up to the sum of 12 weeks of wages;

b) liquidated damages, in an amount equaling the sums provided in section a);

c) interest, calculated at the prevailing rate;

d) appropriate equitable relief, including employment, reinstatement, and promotion; and

e) attorney's fees, expert witness fees and other costs.

29 CFR §825.400(c).

Unlike punitive damages under the ADA or Title VII, liquidated damages are awarded unless the employer can establish that "the violation was in good faith and the employer had reasonable grounds for believing the employer had not violated the Act." 29 CFR §825.400 (c).

A person who believes his rights under the FMLA have been violated has the choice of filing a complaint with the Department of Labor or filing a private lawsuit. Filing with the Department of Labor is not a condition precedent to filing a lawsuit. The statute of limitations for filing an FMLA action is two years, or three years if the employee can establish that the violation was willful. 29 CFR §825.400(a)(b).

In closing, the FMLA is a valuable tool in assisting your client when she is pregnant, or s/he or a family member has a "serious health condition", and requires time away from work. The statute is generally more generous to the employee and less rigorous to prove since it is a strict liability statute. Although it is questionable whether emotional distress damages are recoverable under the FMLA, the statute does provide for wage and benefit loss, liquidated damages, attorney's fees and costs, interest and equitable relief.

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