The purpose of the Family Medical Leave Act (FMLA) is easy enough to grasp, but common mistakes can lead to costly lawsuits.

Information and process errors 

• Not using FMLA request forms. Standardized FMLA request forms better ensure that an employee will provide 100% of the information needed to make an approval decision. Employees should communicate the details of their FMLA request informally before a formal request is made.

• Not including medical information from doctors. Often the only valid information that can be used to grant FMLA leave is medical information from medical professionals.

• Not defining the period of incapacity. The request must clearly define the start and end dates of the FMLA leave.

• Not having a process that allows medical information to be kept private. Many medical conditions might be embarrassing to an employee if know to their supervisor or other employees in the firm.

Communication Errors 

• Employer not communicating consequences of not submitting request properly. Employees need to know the basics of how FMLA requests are approved and what their responsibilities are as an employee if it is not approved.

• Employer not communicating that additional medical information must be provided within 15 days of that request.

• Employer not validating receipt of company FMLA request communications. The Company is responsible for proving that employees have received important information about their FMLA requests and how the request process works.

1. Improper FMLA Request and Approval Process $998,000 in Damages Awarded to Depressed Employee, But FMLA Case is Rejected by Circuit Court


A jury awarded $200,000 in liquidated damages, $200,000 in other damages,  $354,000 in front pay and $244,000 in attorney fees and court costs to Patrick Hurley, CEO of Kent of Naples, Inc.  because he had been fired for invoking his right to FMLA protection.

Case Background:
Hurley worked for a subsidiary of parent company Kent Security Services Inc. He sent a free-formed email to his CEO Gil Neuman requesting FMLA leave. Hurley asked for 11 weeks of scheduled vacation for each of the next two years. Neuman rejected Hurley's email request.

Later, in a face-to-face meeting, Hurley relayed that his doctors were advising him that the vacation was necessary. According to news reports, Hurley never brought up that he was suffering from depression and panic attacks. Both Hurley and his boss agree, according to court documents, that Hurley never mentioned his medical reasons for the request.

Soon afterwards, Hurley’s boss  terminated him for “insubordinate behavior and poor performance.”Then, a week later, Hurley’s doctor fills out an FMLA form noting that Hurley suffered from depression and had received treatment for his condition. Hurley’s doctor also said that “he could not determine the duration and frequency of any incapacity." Hurley’s failure to include a “period of incapacity” in his original leave request caused his award to get overturned by  the Circuit Court of Appeals.

The Circuit Court clearly explained what the definition of “period of incapacity” is in the context of FMLA protection, "The FMLA does not extend its potent protection to any leave that is medically beneficial leave simply because the employee has a chronic health condition. Rather, the FMLA only protects leave for “[a]ny period of incapacity or treatment for such incapacity due to a chronic serious health condition.” 29 C.F.R. § 825.115(c) (emphasis added); see also 29 U.S.C. § 2612(a)(1)(D) (providing leave for serious health conditions that make the employee unable to perform job functions).

The regulations define “incapacity” as “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” 29 C.F.R. § 825.1

In their explanation, the Circuit wrote, “Under the FMLA, an employee is required to provide notice when the need for leave is foreseeable. That said notice is only relevant to an FMLA claim if the noticed leave is protected by the FMLA.Giving an employer notice of unqualified leave does not trigger the FMLA’s protection. Otherwise, the

Part C does mention chronic health conditions,

"Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.)."

Some medical conditions are specially called out. For example, there is mention of a epilepsy which might generally be considered a mental health condition, and part D also mention Alzheimer's. However, it does not specifically mention depression or anxiety disorders.

The case has been ruled not on the legitimacy of Hurley’s  mental health condition claims, but instead that the information in his FMLA leave request was not in compliance with the law. This case is interesting because the employee, as the CEO of a company, should have known better. For whatever reason, he did not use the proper procedure for submitting a leave request that would be covered by FMLA.

FMLA form WH 380-E includes language explaining that not including proper medical certification might cause the request to be denied, "If requested by your employer, your response is required to obtain or retain the benefit of FMLA protections. 29 U.S.C. §§ 2613, 2614(c)(3). Failure to provide a complete and sufficient medical certification may result in a denial of your FMLArequest. 29 C.F.R. § 825.313."




We see how a 'common sense' approach to these kind of work situations involving leave requests can fail, because they appear to be sensible on a personal level, but there isn't much awareness of what the laws define and cover.

If Hurley had followed the proper procedure, and used the correct form, the leave request denial and termination might not have occurred, therefore eliminating the need for a lawsuit and later appeals.

The Company’s biggest mistake, that led to litigation in the first place, was accepting and making a decision on an invalid free-form FMLA request sent by email. The Supervisor, in this case the CEO of the holding company, should have rejected the email and provided an FMLA request form. With this form in hand, employee Hurley would have been more likely to include valid information with his request.

The Department of Labor 16-page booklet on the FMLA is an excellent guide that uses uses plain language. Every employee should have access to this or other resources to help them stay on the straight and narrow path of a valid FMLA request.
 
A DOL fact sheet explains the details an employee must provide an employee for a leave request to be covered by the FMLA:, "However, the employee is required to provide enough information for the employer to know that the leave may be covered by the FMLA, and when and how much leave the employee anticipates needing to take. For example, the employee may need to provide information showing that the employee has a condition that causes the employee to be unable to work, that he or she is needed to care for a qualifying family member who is under the continuing care of a doctor, or that a qualifying family member has been hospitalized overnight."

The following case is a fine example of what happens when employers make FMLA request communication errors.


2. Clearly Informing Employees of FMLA Deadlines and Consequences
Fedex Worker That Was Terminated Won $173,000 In Damages in Back Pay

A paralegal who worked for Fedex was experiencing health problems that required her to take medical leave. Fedex extended an offer for FMLA leave. She was to fill out medical certification forms to certify the leave and submit them in 15 days or less [? less than what?] Initially, she was not feeling well enough to submit them on time, and, even more of a problem, did not communicate this at all to Fedex at all..

Fedex did not hear back after repeated attempts to reach her, so they fired her for not attending at work and for failing to communicate the Company for an extended period of time. She later responded by filing a lawsuit claiming “FMLA interference”. She claimed that she did not know the consequences of not submitting the completed medical certification forms. The court sided with her because Fedex did not communicate what those consequences were: the invalidation of FMLA protection.

Her trial went to jury where she won, and the verdict was upheld by a circuit court.

The relevant FMLA section says, “At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee's failure to provide adequate certification.”




So, if Fedex had followed this leave request procedure, the Company could have saved $173,000. If the employee had been properly informed of the consequences of not filing the medical certification on time, she might have done so on time and not been terminated.

3. College Instructor Won FMLA Appeal For Employer Not Notifying Her of Leave Limits

A woman hired as an instructor by Corinthian Colleges, Inc. took more than the full 12 weeks of FMLA leave and was fired for doing so. She sued the college because she said she never received information from her employer about any FMLA leave limits and that her firing was retaliatory. The college said it presumed as she received the letter notifying her that she had gone over the limit of her FMLA leave. At first, the employer won in court, but an appeal reversed the  decision stating, "[i]n this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice.”

Some labor law firms interpret the appeal decision as a strong message that employers should always send FMLA communications, letters or otherwise, using methods that verify and track the receipt of that communication.

Having an automated system that monitors and tracks FMLA request information is any companies first step to limiting FMLA request errors and liabilities.

Pacific Timesheet time off and absence management software provides a comprehensive way to manage FMLA and other leave requests.

Image Credits: Department of Labor