July 18, 2018

A. COVERED EMPLOYERS

An employer is covered by the FMLA if it employs 50 or more employees during 20 or more full work weeks of the current or preceding calendar year. Part-time employees are counted in determining if the employer has 50 or more employees. Employees who are on leave are counted, if “the employer has a reasonable expectation that the employee will later return to active employment.” 29 C.F.R. § 825.105(c). Employees who have been laid off are not counted.

1. Joint Employer Situations

The concept of an “integrated employer” from Title VII of the Civil Rights Act of 1964 is also applied to the FMLA. The number of employees in two or more companies may be combined to reach the 50-employee threshold based on the following four factors:

a. common management;

b. interrelation between operations of the businesses;

c. centralized control of labor relations;

d. the degree of common ownership and control.
The determination will be made based on the consideration of all of the above factors, but it is not necessary that each of the above factors be present.

Employees who are jointly employed by two businesses will be counted against the 50-employee threshold of both businesses. Employers will be considered joint employers of an employee if the following conditions exist:
e. There is an arrangement between two businesses to share the services of the employee or to interchange the employee;

f. One employer acts in the interest of another employer in relation to the employee; or

g. Two businesses share control over the employee. The determination of whether two businesses are a joint employer of an employee is based on the totality of the above factors; the presence or absence of one factor is not determinative. The most common joint employer situations, of course, are when employee leasing and temporary employment agencies supply workers for other businesses.

In joint employer situations, only the primary employer is required to give the notice of FMLA, provide FMLA leave, and to maintain health benefits during an FMLA leave. The secondary employer is responsible for reinstating the employee after FMLA leave only if the secondary employer continues to utilize an employee from the temporary and leasing agency and the agency places the employee with a secondary employer. A secondary employer may not retaliate against an employee for using FMLA leave, even if the secondary employer is not itself covered by the FMLA.

To determine whether an employer is the primary or secondary employer of an employee, the factors to consider are which employer has responsibility to hire and fire the employee, sign and place the employee, make payroll and provide employment benefits. Ordinarily an employee leasing or temporary employment agency will be the primary employer.

B. ELIGIBLE EMPLOYEES

Determining whether an employee is eligible for FMLA leave involves a series of detailed questions. This section provides a brief overview of the framework for analyzing FMLA eligibility questions. It is necessary, however, to consult the many definitions and detailed explanations of many of the terms and concepts of the FMLA in order to reach a decision in specific cases. More detailed information regarding FMLA eligibility is presented elsewhere in their materials.

1. Work-Related Eligibility Factors

Before reaching the question of whether an employee qualifies for an entitlement to an FMLA leave based on medical needs, the employee must first be eligible for an FMLA leave based on three criteria regarding the employee’s work experience. The employee is eligible for FMLA benefits only if the employee meets each of the following:

a. the employee works at a location in which the employer has 50 employees within a 75 mile radius, as measured by mileage on public roads;
b. the employee has been employed by the employer for a total of one year, although not necessarily continuously; and
c. the employee must have worked at least 1250 hours during the 12 month period immediately before the employee requests FMLA leave.

2. Medical-Related Eligibility Factors

An employee is eligible to take an FMLA leave for the following reasons:

a. birth and care of a child;
b. placement of a child for adoption or foster care;
c. to care for a seriously ill spouse, child or parent, but not a parent-in-law; and
d. the employee’s serious health condition.

3. Military Servicemember-Related Leave Factors

Based on FMLA amendments passed in 2008, an employee is also entitled to take leave for the following additional reasons:

a. “any qualifying exigency” arising out of the fact that a spouse, child, or parent is on active duty military or has been notified of an impending call to active duty; and
b. The serious illness or injury of a spouse, child, parent or next of kin sustained in the line of duty while on active duty in the military.

A “qualifying exigency” is limited to a “specific and exclusive list of activities: (1) short notice deployment; (2) military events and related activities; (3) child care and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities. The serious illness of a service-member is an illness or injury that makes the servicemember unfit to perform the duties of his or her rank or position.

4. Statutory Definition of a “Serious Health Condition”

FMLA defines serious health condition as an illness, injury, impairment, or physical or mental condition that involves:

a. inpatient care;
b. absence plus treatment;
c. pregnancy;
d. chronic conditions;
e. permanent or long-term conditions; and
f. conditions requiring multiple treatments.

5. Practical Definition of a “Serious Health Condition”

a. The Three Day Rule
A “serious health condition” that justifies a FMLA leave request is defined generally as a period of incapacity of more than three days.
b. The Doctor Care Rule

The definition of a serious health condition is quite broad and includes leave for chronic conditions, such as asthma, epilepsy, and diabetes. Furthermore, serious health conditions that may not be incapacitating but for which multiple treatments are being given because they would likely result in incapacitation for more than three days in the absence of such treatments qualify as a serious health condition. Examples of such treatment include chemotherapy or radiation for cancer, dialysis for kidney disease, and possibly even physical therapy for severe arthritis. The cases below are illustrative.

In Thorson v. Gemini, Inc., 123 F.3d 1140 (8th Cir. 1997), an employee was terminated for excessive absenteeism under the employer’s “no fault” policy after missing a number of work days because of a stomach illness. Because plaintiff’s doctors eventually concluded that she was only suffering from a minor ulcer, the employer determined that she was not entitled to FMLA leave for all of the absences because a minor ulcer does not qualify as a serious health condition. The court disagreed and held that even minor conditions can be classified as a serious health condition if they involve continuing treatment by a health care provider. As such, plaintiff’s absences qualified as FMLA leave, and the employer could not count her absences against her under its “no-fault” attendance policy.

In Miller v. AT & T Corp., 250 F.3d 820 (4th Cir. 2001), an employee was terminated for excessive absenteeism under the employer's Attendance and Leave Policies after she missed a number of workdays because of the flu. The employer argued that the flu was not considered a serious health condition according to the FMLA. See 29 C.F.R. § 825.113 ("Ordinarily, unless complication arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems . . . do not meet the definition of a serious health condition . . . ."). The court determined the employee was entitled to leave under the FMLA regardless of the "ordinary exception" under 29 C.F.R. § 825.113, because the employee was unable to work (i.e., incapacitated) for three or more consecutive calendar days and received two or more "treatments" or "evaluations" connected to her ailment. The focus is on the effect of the illness on the employee and the extent of necessary treatment, rather than on a particular diagnosis.

In Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109 (6th Cir. 1997), the employer’s “no-fault” policy provided that employees would be automatically terminated if they accumulated more than six absences in a six-month period. The plaintiff, who was terminated for excessive absenteeism, claimed that the employer violated the FMLA because his absences had been a result of chronic episodes of hematochezia, or the passage of bloody stools. The court, however, held that this condition was not a serious health condition under the FMLA because it did not prevent him from performing the essential functions of his job.

The court was also persuaded that plaintiff did not qualify for FMLA leave since he had never attempted to receive medical treatment for his condition after being terminated. In Johnson v. Kmart, 596 F.Supp.2d 1045, 1047 (E.D. Mich. 2009), an employee was terminated due to excessive absenteeism when he took a day off to drive his child to the emergency room. The child suffered an eye injury (i.e., ruptured globe) and the family physician recommended the child should be taken to an eye specialist immediately. The specialist determined that the eye injury was not extremely serious and the child could resume normal activities after a day of rest. The employer contends that the child was not incapacitated for three or more days; thus, the injury was not a serious condition. The court held that the child did not actually have to suffer from a serious injury, rather, the employee only needed to reasonably believe that a serious injury that could result in three or more days of incapacity had occurred.

In George v. Associated Stationers, 932 F. Supp. 1012 (N.D. Ohio 1996), the plaintiff was terminated for violating his employer’s “no-fault” attendance policy even though his absences were a result of his contracting the chicken pox and being told by his physician that he could not return to work while contagious. The court held that chicken pox did qualify as a serious health condition under the FMLA. As such, the employer could not count the employee’s absences due to chicken pox against him.

The opposite result occurred in Stoops v. One Call Communications, Inc., 141 F.3d 309 (7th Cir. 1998). The plaintiff claimed that his chronic fatigue syndrome entitled him to intermittent FMLA leave. His doctor, however, certified that plaintiff was not limited from working as a result of the condition. Upon receiving this certification, the employer notified the plaintiff that any future absences would count against him under the “no-fault” attendance policy. Plaintiff was subsequently terminated after accumulating 12 absences over the next four weeks. The court upheld the termination because, based on his own doctor’s certification that chronic fatigue syndrome did not render him incapacitated, plaintiff was not entitled to FMLA leave and was subject to the employer’s attendance policy.

In Perry v. Jaguar of Troy, 353 F.3d 510 (6th Cir. 2003), an employee brought suit against his former employer alleging violations under the FMLA when the employer refused

to allow the employee to return to work after he took the summer off to care for his 13-yearold son. The employee's son suffered from attention deficit disorder (ADD) and attention deficit hyperactivity disorder (ADHD) that required periodic treatment from a physician and – according to the employee – constant supervision. The employer contends that ADD and ADHD are not a serious condition to qualify for FMLA. The court agreed; the employee's child was not incapacitated, because his condition did not prevent him from performing the same daily activities as other children. The child could ride the bus, swim, play games, watch television, and play with friends. The requirement for extraordinary supervision does not address the child's ability to engage in regular daily activities.

c. Substance Abuse Treatment

FMLA leave is available for treatment of substance abuse. However, treatment for substance abuse does not prevent an employer from taking employment action against an employee involved in substance abuse related misconduct. For example, in Labrucherie v. Regents of the Univ. of California, 119 F.3d 6 (9th Cir. 1997), the employee was an alcoholic who was terminated when he missed more than five days of work due to his incarceration after his third arrest for drunk driving. Because the ADA specifically provides that an employer may hold an alcoholic employee to the same standards as other employees even if unsatisfactory performance is related the employee’s drug use or alcoholism, the court upheld the employer’s actions. The court further held that a termination based on misconduct stemming from a disability, rather than the disability itself, is valid.

In Ames v. Home Depot U.S.A., Inc., 629 F.3d 665 (7th Cir. 2011), an employee was terminated for violating the employer's substance abuse policy when she came to work under the influence of alcohol. The employee contends her alcoholism entitles her to leave under the FMLA. Substance abuse may be a serious health condition under the FMLA if the treatment for the abuse involves inpatient care or continuing treatment by a health care provider; however, the employee in this case failed to meet these requirements. The employer checked herself into a hospital for her alcoholism only after violating the employer's substance abuse policy. Furthermore, the employee testified that her alcoholism did not affect her work prior to this incident to render her incapacitated under the "continuing treatment" guidelines, nor did the employee's primary care physician – who knew of the alcoholism – indicate that the employee was unable to work.

An employer may not take action against an employee who is providing care for an immediate family member who is receiving treatment for substance abuse.

6. FMLA Leave Entitlement.

a. Amount Of Leave FMLA  entitles eligible employees to take up to 12 weeks of leave during a 12-month period. See 29 C.F.R. § 825.200. The new amendments, however, entitle employees to up to 26 weeks of leave to care for military servicemembers injured in the line of duty, but the total leave taken by the employee for all purposes cannot exceed 26 weeks in a 12-month period.

b. Calculating Leave Entitlement

The employer may adopt one of several alternative methods for computing the 12- month period: (1) a calendar year basis; (2) an annual accrual on the employee’s anniversary of the date of hire; or, (3) during the 12 months preceding the employee’s use of leave, i.e., a “rolling” period of the most recent 12 months. Using the rolling 12-month alternative will prevent an employee from stacking two leaves back to back. If the employer does not designate which method is to be used, the employee may use whichever method is the most generous. See 29 C.F.R. § 825.200(b). The 12-month period for Family Military Leave starts when the employee starts using Military Caregiver Leave.

Employees who exceed the 12-week leave period (26 for servicemember family medical leave) lose protection under the Act. In Cehrs v. Northeast Ohio Alzheimer’s Research Center, 1998 U.S. App. LEXIS 21260 (6th Cir. Sept. 1, 1998), the plaintiff missed work from November 26, 1993, until March 1, 1994, due to a severe flare-up of psoriasis. Although the plaintiff provided medical documentation to the employer regarding her need for FMLA leave, the employer terminated her in February 1994. The court upheld the termination because plaintiff was only entitled to receive 12 weeks of leave during any given year under the FMLA.

a. Intermittent Leave.

Intermittent leave is FMLA leave taken in separate blocks of time (from one hour to several weeks) due to a single qualifying illness. A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per week or hours per workday. Only the amount of leave actually taken may be counted toward the 12 or 26 weeks of leave to which an employee is entitled.

FMLA leave may be taken intermittently or on a reduced leave schedule, under certain circumstances. Leave can be taken when medically necessary for planned or unanticipated medical treatment or for recovery from treatment of a serious health condition.

Leave also may be taken to provide care or psychological comfort to an immediate family member with a serious health condition.

Examples of intermittent leave include leave taken on an occasional basis for medical appointments, prenatal examinations, and periods of severe “morning sickness.” With respect to cooperative scheduling for planned medical treatment, the 2008 revisions to the regulations now require the employee to make a “reasonable effort” to avoid unduly disrupting the employer’s operations.

There is no limit to the length of an increment of leave when an employee takes intermittent leave or leave through a reduced work schedule. An employer may limit increments to the shortest period of time that the employer’s payroll system uses to account for absences or use of leave, provided it is one hour or less. Employers can force employees to take off an entire shift under a “physical impossibility” exception to the increment rules, but only where it is physically impossible for an employee taking a partial-shift absence to commence or end work midway through the shift (e.g., flight attendant missing take-off).

Also, if an employee is unable to work mandatory overtime as a result of FMLA, the time missed will count as intermittent or reduced work schedule FMLA leave.

For intermittent or reduced schedule FMLA leaves, the employer may also transfer the employee temporarily, until the leave is completed, to an alternate position that better accommodates the employee’s schedule. The alternative position must have the same pay and benefits, although it does not have to have equivalent duties.

b. Reinstatement To Same Or Equivalent Position

An employee on FMLA leave must be restored to the same or an equivalent position, having the same terms and conditions of employment. An equivalent position includes one with the equivalent status, authority and responsibility. See 29 C.F.R. § 825.214.

c. Communications and Information About the Leave.

The employee must give the employer 30-days notice of a foreseeable leave, or as much notice as practical for unexpected FMLA leaves.

An employer may require medical certification of the serious health condition that is the justification for an employee’s FMLA leave request. An employer may, under some circumstances, seek additional information from the employee’s health care provider and may obtain a second or third medical opinion.