Recent FMLA Decisions
Leave Unanswered Questions

 

Most employers struggle with how to apply the Family and Medical Leave Act ("FMLA").  Much of the struggle is due to the substantial amount of detail in the FMLA regulations and the resulting attention needed for administration and tracking of FMLA leave.  It is especially important that employers stay abreast of new FMLA legal developments.  The United States Court of Appeals for the Seventh Circuit, which has jurisdiction over the states of Indiana, Illinois and Wisconsin, recently issued two decisions which affect some complex FMLA issues:  notice of the need for leave and required substitution of paid leave.  These decisions leave several questions unanswered that may affect your administration of the FMLA.

 

Seventh Circuit Clarifies "Sufficient Information" Required To Provide Notice

 

In Burnett v. LFW Inc., d/b/a The Habitat Co.,. 472 F. 3d 471 (7th Cir. 2006), the Seventh Circuit addressed when an employer is on notice that an employee's absences may be covered under the FMLA.   One of the requirements for an employee seeking to use FMLA leave is that the employee provide sufficient information for the employer to understand that the employee needs leave for FMLA-qualifying reasons.  The employee need not mention FMLA when requesting leave to meet this requirement, but need only explain why the leave is requested. 

 

In Burnett, the Seventh Circuit determined that an employee who disclosed a series of health problems to his employer over a 4 month period--including "feeling sick," frequent urination, and the need for a biopsy--provided sufficient notice to his employer of a serious health condition that may qualify for leave under the FMLA.  The Seventh Circuit found that the employee could proceed with his allegations that his employer interfered with his rights and retaliated against him by firing him for insubordination when he attempted to leave work one day when he was not feeling well, even though, at that point, he had not yet been diagnosed with prostate cancer.  The Seventh Circuit agreed with the employee's contention that he had provided sufficient information such that his incapacity due to undiagnosed prostate cancer and the diagnostic procedures pertaining to his condition, entitled him to FMLA leave. 

 

The district court had dismissed the employee's FMLA claim, concluding that the employee could not demonstrate he had provided his employer with evidence he had a serious health condition protected by the FMLA.  Disagreeing, the Seventh Circuit held that even though an employee's "bare assertion" that he is "sick" is insufficient information for the employer to understand that the employee needs leave for FMLA-qualifying reasons, an "employee's notice obligation is satisfied so long as he provides information sufficient to show that he likely has an FMLA-qualifying condition."  The Seventh Circuit reasoned that the employer had to consider the medical information provided to the employer over the 4 month period to appreciate the context of the employee's declaration of sickness.  The Seventh Circuit concluded that it was not unreasonable or burdensome to ask the employer to consider the employee's disclosed medical history in assessing the seriousness of the employee's asserted sickness. 

 

The Burnett decision leaves unanswered questions for employers struggling with making judgment calls between "bare assertions" of sickness and information sufficient to show "likely" FMLA-qualifying conditions.  Employers should be cautious when an employee states he or she needs to be absent for medical reasons and consider all the information provided by the employee when determining whether the employee has given FMLA notice.

 

Seventh Circuit Limits Substitution of Vacation/Sick Leave For Certain FMLA Leave

               

                In Repa v. Roadway Express Inc., 2007 U.S. App. LEXIS 4131 (7th Cir. 2007), the Seventh Circuit reaffirmed that employers cannot force employees to use vacation or sick days for FMLA leave covered by short term disability ("STD") benefits.  Pursuant to the FMLA regulations, substitution of paid accrued vacation or sick leave may be made for any unpaid FMLA leave needed for the employee's own serious health condition or to care for a family member with a serious health condition.  When the leave is paid through STD benefits, workers' compensation benefits or otherwise, an employer cannot require substitution of paid leave.

 

In Repa, the employer argued that, based on the language used in the Department of Labor ("DOL") regulations relating to paid leave, substitution was intended to apply only to STD leave taken for the birth of a child.  Rejecting this argument, the Seventh Circuit reasoned that even though the first sentence of the DOL regulation (Section 825.207(d)(1)) applies to the birth of a child, none of the following three sentences in the provision even mentions the subject of childbirth, and none refer to the first sentence of the regulation.  Consequently, the Seventh Circuit held that the employer's insistence that Repa use his paid leave while also receiving STD benefits, violated the DOL regulation limiting employer ability to require the substitution of paid leave for unpaid leave. 

 

The employer also argued that the applicable DOL regulation was invalid because it created a limit on the substitution of leave that was not intended by Congress.  The Seventh Circuit did not address that issue because the employer had not presented the argument to the district court. 

 

The Repa decision leaves two unanswered questions for future courts to decide:  1) whether the DOL regulation relating to the substitution of paid leave is valid and 2) whether employers can force employees to use a prorated portion of vacation or sick days if the disability benefits are less than their full pay.  For example, if a STD policy only pays 60% of the employee's pay, can the employer force the employee to use 40% of a vacation day for every day they are absent?  For the time being, these questions remain some of the many open issues under the FMLA that employers will have to grapple with going forward.  Employers who chose to interpret these matters in a way that may negatively affect employees should make sure they are well-advised.

 

Tami A. Earnhart is a partner at Ice Miller LLP and part of the Labor Practice Group.  Tami represents employers in all aspects of employment and labor law.  Please contact Tami at tami.earnhart@icemiller.com or any other member of Ice Miller's Labor and Employment Section for further information on these or other FMLA issues.

 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.