Employer Difficulty in FMLA Implementation: A Look at Eighth Circuit Interpretation of "Serious Health Condition" and Employee Notice Requirements
Nelson, Kenza Bemis, Journal of Corporation Law
The Family and Medical Leave Act (FMLA) was adopted in 1993 in response to growing changes in the American way of life and its workforce.1 Before 1993, the United States had no formal regulatory system for providing family or medical leave; if such leave did exist, employers granted it voluntarily.2 Unfortunately, this voluntary system was not providing adequate protection for employees.3 Thus, after first being introduced to the House of Representatives in 1992, the FMLA was signed by President Clinton on Februarys, 1993.4
Recently, there has been a great deal of litigation in the circuit courts on several parts of the FMLA. This Note will analyze two of these components: "serious health conditions" and employee notice requirements. Generally, these two areas have the greatest impact on employers. Heavy consequences exist if employers do not correctly ascertain whether an employee meets the "serious health condition" requirements and/or if employers do not realize that an employee has put them on notice of his or her need for FMLA leave.5
Although litigation has been fervent in all circuits, this Note will use the framework of the Eighth Circuit. There will, however, be occasional reference to holdings in other circuits. The Note will conclude with several recommendations to remedy the problems arising under the FMLA, in an effort to determine which of these possibilities would best protect employers.
The FMLA, as adopted by Congress, is codified in Chapter 29 of the U.S. Code. Section 2654 includes a direction to the Department of Labor (DOL) to create and implement regulations to help guide employers and employees in understanding and carrying out the Act.6 These regulations further detail and interpret all sections of the FMLA. The regulations became effective on February 6, 1995.7 Together, the Code and the regulations offer direction to employers and employees about their rights under the FMLA.
A. FMLA Purposes
Congress outlined the purposes of the FMLA to cater equally to both employees and employers.8 Congress intended that the Act should not prevent employers from implementing leave policies more generous to employees than the Act required.9 This illustrates Congress's belief in the effectiveness, both culturally and economically, of mandated employee leave policies. Congress believed the Act would be cost-effective to employers, because studies showed it was much cheaper to reinstate employees after returning from leave than to hire replacements.10 The Senate failed to anticipate any employer difficulty implementing the Act, focusing only on the cost-effectiveness of leave benefits.
B. Statutory Provisions
The FMLA applies to any employee who has worked for the employer for at least twelve months and has provided at least 1250 hours of service to the employer during that time." The Act covers any employer who employs fifty or more employees during the working day during each of twenty or more work weeks out of the year.12 The FMLA defines employer as "any industry or activity affecting commerce," thus including corporations.13
1. "Serious Health Condition"
The FMLA allows employees to take up to twelve weeks of leave during any twelve-month period.14 To qualify for this leave, an individual, or a statutorily defined member of the individual's family, must have one of the conditions specified by Congress in section 2612.15 These conditions, with the exception of childbirth and adoption which are also covered, revolve around the definition of a "serious health condition," as defined by the DOL in its regulations.16 If an employer questions whether an employee or an employee's spouse, child, or parent has a "serious health condition" that complies with the statute, the employer has a right to request a certification from the employee's health care provider.17
2. Notice Requirements
The FMLA also contains notice requirements outlining when an employee must inform an employer of the need for leave. …