September 4, 2018

Last year, a Massachusetts employee was awarded nearly $300,000 plus her attorney’s fees, against her employer after the employer terminated her “for abandoning her job” while she was hospitalized.  The employer argued that firing the employee was justified because she did not call in to report that she was unable to come to work.  However, the employee’s son had called in for her four times within a week, and had spoken to her supervisor, her supervisor’s boss, and the boss’s boss.  The son had explained that his mother was hospitalized and unintelligible.  At trial, the jury found that the employer was not only wrong to have fired the employee, but that the employer wilfully violated the Federal Family and Medical Leave Act, justifying double damages to be awarded.  [Boadi v. Center for Human Development (D.Mass., Sept. 21, 2017, No. 3:14cv30162) 2017 U.S. Dist. LEXIS 153847.]

The Federal Family and Medical Leave Act (“FMLA”) provides job security to an employee who is absent from work because of the employee’s own serious health condition or to care for the specified family members with serious health conditions, as well as the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee.  [29 U.S.C. § 2601(b)(1) – (2); see Ragsdale v. Wolverine World Wide, Inc. (2002) 535 U.S. 81, 86.]

Employers Subject to the FMLA:
Private employers are covered by the FMLA if they employ 50 or more full or part-time employees within 75 miles of the worksite.  It is the employer’s responsibility to designate leave, whether paid or unpaid, as qualifying under the FMLA or the California Family Rights Act (“CFRA”) and to give notice of the designation to the employee.  [29 C.F.R. § 825.300(d)(1); 2 Cal. Code Regs. § 11091(a)(1)(A).]  When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave and his or her specific rights and responsibilities within five business days (absent extenuating circumstances).  [29 C.F.R. § 825.300(b)(1) – (c)(1).]

Eligible Employees Protected Under the FMLA:
An employee is eligible to take an FMLA leave if all the following are met:

1. employed for at least 12 months (this does not need to be continuous);
2. worked at least 1250 hours of service, which does not include vacations and paid time off during the 12 month period immediately preceding the commencement of leave; and
3. employed at a worksite where the employer employs at least 50 employees within a 75 mile radius.

Basis for Leaves:
Under the FMLA, an eligible employee has leave rights for up to 12 workweeks in a 12-month period, which may be taken intermittently, for any of the following reasons:

• The employee’s serious health condition (illness or injury) that makes the employee unable to perform the essential functions of the position;
• The “serious health condition” of a spouse, son, daughter, or parent;
• The birth of a son or daughter or care for such child; or
• The placement of a son or daughter with the employee for adoption or foster care.
• A “qualifying exigency” arising out of the fact that the employee’s son or daughter, parent, or spouse is on “covered active duty” in the Armed Forces, or has been notified of an impending call to “covered active duty” status.

A serious health condition exists when an employee is unable to perform the essential functions of his or her position.  A serious health condition under the FMLA is “an illness, injury, impairment, or physical or mental condition” that involves:

• Inpatient care in a hospital, hospice, or residential medical care facility (this means a period of incapacity, or treatment in connection with such an incapacity); or
• Continuing treatment by a health care provider.

[29 U.S.C. § 2611(11).]

Additionally, an FMLA leave may be taken by an eligible employee to care for the employee’s spouse, son, daughter, or parent with a “serious health condition.” [29 U.S.C. § 2612(a)(1)(C).] A serious health condition for an employee’s child (under 18 years of age or incapable of self-care), spouse, or parent has the same meaning as for the employee’s own “serious health condition” (defined above).

There are additional protections for the family members of a person on active duty in the Armed Forces.  A family member of a service member, namely either a spouse, son, daughter, parent, or “next of kin” (nearest blood relative) may take:

• Up to 12 workweeks of FMLA leave for any “qualifying emergency” arising from the fact that a spouse, son, daughter or parent is on active duty in the Armed Forces; or
• Up to 26 workweeks, less other FMLA leave already taken, to care for an injured service member during rehabilitation.

[29 U.S.C. § 2612(a)(1)(E) and (a)(3).]

Medical Certification Requirement:
Employers may require medical certification of the existence of a “serious health condition.” The medical need must be such that it “can best be accommodated through an intermittent or reduced leave schedule” in the opinion of a health care provider.  [29 C.F.R. § 825.202(b).]

Where intermittent to reduced schedule leave is requested for care of a family member with a serious health condition, the employer may require a medical certification stating that the intermittent or reduced schedule leave is medically necessary for care of or to assist in recovery of the family member, and specifying the expected duration and schedule of the intermittent or reduced schedule leave.  [29 U.S.C. § 2613 (b)(7).]

An employer must give written notice of the requirement for medical certification each time a certification is required, and the employee must provide the requested certification within 15 calendar days thereafter (unless (1) it is not practicable under the particular circumstances to do so despite the employee’s diligent good-faith efforts, or (2) the employer allows the employee more than 15 calendar days to return the requested certification).  [29 U.S.C. § 2613; 29 C.F.R. § 825.305; 2 Cal. Code Regs. § 11091(b)(3).] This means that an employee’s leave may sometimes begin before the employer receives the certification.

The employee must provide a complete and sufficient certification.  A certification is “incomplete” if the employer receives it but one or more of the applicable entries are not completed.  [29 C.F.R. § 825.305(c).] A certification is “insufficient” if the employer receives it but the information provided is vague, ambiguous, or nonresponsive.  [29 C.F.R. § 825.305(c).] An employer that receives a certification that is incomplete or insufficient must advise the employee of that fact and must state in writing what additional information is necessary to make the certification complete and sufficient.  [29 C.F.R. § 825.305(c).] The employer must give the employee seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good-faith efforts) to cure any such deficiency.  [29 C.F.R. § 825.305(c).]

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.　This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.