Academic journal article Defense Counsel Journal

Using Case Law and Strategies to Defend Family and Medical Leave Act Claims

Academic journal article Defense Counsel Journal

Using Case Law and Strategies to Defend Family and Medical Leave Act Claims

Article excerpt

Does an employee meet the requirements of the FLMA for leave? A lot of issues and answers go into making that decision

THE federal Family and Medical Leave Act (FMLA), 29 U.S.C. [subsections] 2601-2654, took effect for most employees on August 5, 1993. According to the report of the Senate Committee on Labor and Human Resources, the act is intended to provide a "sensible response" to the growing "tensions between work and family" by "establishing a right to unpaid family and medical leave for all workers covered by the act."(1) While the FMLA has established an avenue for employees to seek relief from the burdens caused by personal and family illness, its implementation has not been without controversy. According to the Department of Labor, the number of complaints filed under the FMLA has risen every year.(2)

Now, after nearly four years, key areas of dispute are crystallizing. The federal courts have yet to interpret significant portions of the FMLA, but by reviewing the growing body of FMLA case law and its regulations, defense counsel can look at sections of the act that are similar to other federal acts to provide themselves with the tools needed to construct arguments based on the other analogous federal statutes.


The Department of Labor's interim regulations were published in June 1993,(3) and after reviewing the comments, the DOL issued final regulations that took effect on April 6, 1995.(4)

Since the final regulations alter the interim regulations in some significant areas, defense counsel need to be aware that employers sued for alleged FMLA violations occurring prior to April 6, 1995, cannot be held to the standards established in the final regulations. As long as the events involved in an FMLA action occurred prior to April 6, 1995, the dispute is governed by the 1993 interim regulations.(5) As one federal district court stated, "Regulations, like statutes, cannot be applied retroactively absent express direction to do so."(6) Since neither the FMLA nor the final regulations give that "express direction," counsel involved in pre-April 6, 1995, violation cases should have a copy of the 1993 regulations and familiarize themselves with the differences between the two sets.

The discussions and analyses in this article will refer to the final regulations.(7)


While the FMLA provides leave in some cases of personal emergency, it "clearly does not provide qualified leave for every family emergency," according the federal district court in Kelley v. Crosfield Catalysts, which went on to state that the act "is not a general grant of leave protection covering all family crises."(8)

The FMLA does provide leave for eligible employees if the employee or the employee's spouse, son, daughter or parent suffers from a serious health condition, which it defines as "an illness, injury, impairment, or physical or mental condition that involves inpatient care ... or continuing treatment by a health care provider."(9) What constitutes a "serious health condition" has been at the heart of many disputes under the FMLA.

A. Serious Health Condition of Employee

In order to be eligible for FMLA leave, the employee must be "(a) unable to perform the functions of his or her position, and (b) suffering from a serious health condition."(10)

If an employee can perform the duties of the job, the employee is not eligible for FMLA leave, even if the employee suffers from an illness.(11) The DOL regulations define three circumstances in which an employee is deemed to be unable to perform the functions of the position: (1) if a health care provider determines that the employee cannot work at all, (2) if a health care provider determines that the employee cannot "perform any one of the essential functions of the employee's position within the meaning of the Americans with Disabilities Act (ADA), and or (3) if the employee must be absent from work to obtain treatment for a serious health condition. …

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