Section of Labor and Employment Law

AMERICAN BAR ASSOCIATION

SECTION OF LABOR AND EMPLOYMENT LAW

COMMITTEE ON FEDERAL LABOR STANDARDS LEGISLATION

2005 MIDWINTER MEETING REPORT OF THE SUBCOMMITTEE

ON THE FAMILY AND MEDICAL LEAVE ACT

Submitted by:

SUBCOMMITTEE ON THE FAMILY AND MEDICAL LEAVE ACT

Robert M. Hale, Chair

Goodwin Procter LLP

Exchange Place

Boston, MA 02109-2881

With Contributing Authors:

David E.F. Banks

Andrew P. Burnside

Jerry M. Cutler

Jeffrey Michael Daitz

Christopher W. Deering

James E. Erwin

Cintra D.B. Geairn

Cynthia L. Gibson

John W. Hamlin

John Ho

Danny W. Jarrett

Wayne D. Landsverk

Brian L. Lerner

Terrence M. Lewis

Johan W.E. Maitland

Jill A. May

Erin S. Martino

Karen E. Milner

Michael Morgan

Jeffrey Dean Patton

James M. Paul

Steven F. Pockrass

Felicia R. Reid

Kimberly Vanover Riley

Agnes M. Schipper

Michael Joseph Sciotti

J. Alfred Southerland

Timothy L. Stewart

Wilson Edward Still, Jr.

Lisa Sutton

Merle Turchik

Bonnie Ann Wendorff

David Wiley

Andrea Grimes Woods

Table of Contents

CHAPTER 1. HISTORY, STRUCTURE AND ADMINISTRATION OF THE FMLA 1

I. OVERVIEW 1

II. HISTORY OF THE ACT 1

A. Early Initiatives 1

1. The Parental and Disability Act of 1985 1

2. The Parental and Medical Leave Act of 1986 1

3. The Family and Medical Leave Act of 1987 1

4. The Parental and Medical Leave Act of 1988 1

5. The Family and Medical Leave Act of 1989 1

6. The Family and Medical Leave Act of 1991 1

B. Enactment of the Family and Medical Leave Act of 1993 1

1. The 103d Congress 1

2. Congressional Findings 1

III. PROVISIONS OF THE FMLA 1

A. General Structure 1

B. Provisions of Title I 1

C. Effective Date 1

D. Transition Issues 1

1. Effect on Employer Coverage and Employee Eligibility 2

2. Effect on Leave in Progress on, or Taken Before, the Effective Date 2

IV. REGULATORY STRUCTURE OF THE FMLA 2

A. The DOL’s Regulatory Authority 2

B. Development of the Interim and Final Regulations 2

1. Chronology of Regulatory Development 2

a. Notice of Proposed Rulemaking 2

b. Interim Final Regulations 2

c. Final Regulations 2

2. Judicial Deference to the DOL’s Regulations 2

a. Interim Final Regulations 2

b. Final Regulations 2

V. THE ROLE OF THE DOL IN ADMINISTERING AND ENFORCING THE FMLA 2

A. Administrative Action 2

1. Initiation of Administrative Complaint 2

2. DOL Investigation 2

a. Investigative Authority 2

b. Subpoena Power 2

c. Posting Violations 2

i. Appealing a Penalty Assessment for a Posting Violation 2

ii. Consequences of Not Paying the Penalty Assessed 2

3. Resolution of Complaints 2

B. Enforcement Action 2

1. Actions by the Secretary of Labor 2

2. Actions for Injunctive Relief 2

C. Wage and Hour Division Opinion Letters 3

VI. THE COMMISSION ON LEAVE 3

CHAPTER 2. COVERAGE OF EMPLOYERS 3

I. OVERVIEW 3

II. PRIVATE SECTOR EMPLOYERS 3

A. Basic Coverage Standard 3

B. Who is Counted as an Employee 3

1. Location of Employment 3

2. Payroll Status 3

3. Independent Contractors 3

III. PUBLIC EMPLOYERS 4

A. Federal Government Subdivisions and Agencies 4

1. Coverage under Title I 4

2. Civil Service Employees 4

3. Congressional and Judicial Employees 4

B. State and Local Governments and Agencies 5

IV. INTEGRATED EMPLOYERS 6

V. JOINT EMPLOYERS 6

A. Test 6

B. Consequences 6

C. Allocation of Responsibilities 7

VI. SUCCESSORS IN INTEREST 7

A. Test 7

B. Consequences 7

VII. INDIVIDUALS 7

CHAPTER 3. ELIGIBILITY OF EMPLOYEES FOR LEAVE 8

I. OVERVIEW 8

II. BASIC ELIGIBILITY CRITERIA 8

III. MEASURING 12 MONTHS OF EMPLOYMENT 8

IV. MEASURING 1,250 HOURS OF SERVICE DURING THE PREVIOUS 12 MONTHS 8

V. DETERMINING WHETHER THE EMPLOYER EMPLOYS 50 EMPLOYEES WITHIN 75 MILES OF THE EMPLOYEE’S WORKSITE 9

A. Determining the Number of Employees 9

B. Measuring the Number of Miles 9

C. Determining the Employee’s Worksite 9

VI. INDIVIDUALS WHO ARE “DEEMED” TO BE ELIGIBLE EMPLOYEES UNDER THE FMLA 11

CHAPTER 4. ENTITLEMENT OF EMPLOYEES TO LEAVE 11

I. OVERVIEW 11

II. TYPES OF LEAVE 11

A. Birth and Care of a Newborn Child 11

B. Adoption or Foster Care Placement of a Child 11

C. Care for a Covered Family Member with a Serious Health Condition 11

1. Eligible Family Relationships 11

a. Spouse 11

b. Son or Daughter 11

c. Parent 11

d. Certification of Family Relationship 11

2. “To Care For” 11

D. Inability to Work Because of the Employee’s Own Serious Health Condition 11

III. SERIOUS HEALTH CONDITION 11

A. Overview 11

B. Inpatient Care 11

C. Continuing Treatment 11

1. Incapacity for More than Three Consecutive Calendar Days and Continuing Treatment by Health Care Provider 11

a. Incapacity for More than Three Calendar Days 11

b. Continuing Treatment 12

2. Pregnancy or Prenatal Care 13

3. Chronic Serious Health Condition 13

4. Permanent or Long-Term Incapacity 13

5. Multiple Treatments 13

D. Particular Types of Treatment and Conditions 13

1. Cosmetic Treatments 13

2. Treatment for Substance Abuse 13

3. “Minor” Illnesses 13

4. Mental Illness 13

E. Health Care Provider Defined 13

CHAPTER 5. LENGTH AND SCHEDULING OF LEAVE 13

I. OVERVIEW 13

II. LENGTH OF LEAVE 13

A. General 13

B. Measuring the 12 Month Period 13

C. Special Circumstances Limiting the Leave Period 13

1. Birth, Adoption and Foster Care 13

2. Spouses Employed by the Same Employer 13

D. Effect of Offer of Alternative Position 13

III. INTERMITTENT LEAVES AND REDUCED LEAVE SCHEDULES 13

A. Entitlement to Take Intermittent Leaves or Leaves on a Reduced Schedule 13

B. Eligibility for and Scheduling of Intermittent Leaves and Leaves on a Reduced Schedule 13

C. Measuring Use of Intermittent Leaves and Leaves on a Reduced Schedule 13

D. Transferring an Employee to an Alternative Position to Accommodate Intermittent Leave or a Leave on a Reduced Schedule 13

1. Standards for Transfer 13

2. Equivalent Pay and Benefits 13

3. Limitations on Transfer 13

E. Making Pay Adjustments 13

1. FLSA Exempt Employees Paid on Salary Basis 13

2. FLSA Nonexempt Employees Paid on a Fluctuating Workweek Basis 13

3. Exception Limited to FMLA Leave 13

IV. SPECIAL PROVISIONS FOR LOCAL EDUCATIONAL AGENCY EMPLOYEES 13

A. Coverage 13

B. Duration of Leaves in Local Educational Agencies 13

C. Leaves Near the End of an Academic Term 13

CHAPTER 6. NOTICE AND INFORMATION REQUIREMENTS 13

I. OVERVIEW 13

II. EMPLOYER’S POSTING AND OTHER GENERAL INFORMATION REQUIREMENTS 13

A. Posting Requirements 13

B. Other General Written Notice 13

C. Consequences of Employer Failure to Comply with General Information Requirements 13

III. NOTICE BY EMPLOYEE OF NEED FOR LEAVE 13

A. Timing of the Notice and Leave 13

1. Foreseeable Leaves 13

a. Need for Leave Foreseeable for 30 or More Days 13

b. Need for Leave Foreseeable for Less than 30 Days 13

2. Unforeseeable Leaves 13

B. Manner of Providing Notice 13

C. Content of Notice 13

D. Change of Circumstances 13

E. Consequences of Employee Failure to Comply with Notice of Need for Leave Requirements 13

IV. EMPLOYER RESPONSE TO EMPLOYEE NOTICE 13

A. Designation of Leave as FMLA Leave 13

B. Individual Notice to Employee Concerning FMLA Leave 13

C. Notice of Ineligibility for Leave 13

D. Consequences of Employer Failure to Comply with Requirements Concerning Response to Employee Notice 13

1. Designation 13

2. Individual Notice 13

3. Notice of Ineligibility 13

V. MEDICAL CERTIFICATION AND OTHER VERIFICATION 13

A. Content of Medical Certification 13

B. Initial Certification 13

C. Second and Third Opinions 13

D. Recertification 13

E. Fitness for Duty Certification 13

F. Other Verifications and Notices 13

1. Documentation of Family Relationship 13

2. Notice of Employee’s Intent to Return to Work 13

G. Consequences of Failure to Comply with or Utilize the Medical Certification or Fitness for Duty Procedures 13

1. Employee 13

2. Employer 13

VI. RECORDKEEPING REQUIREMENTS 13

A. Basic Recordkeeping Requirements 13

B. What Records Must be Kept 13

C. Department of Labor Review of FMLA Records 13

CHAPTER 7. PAY AND BENEFITS DURING LEAVE 13

I. OVERVIEW 13

II. PAY DURING LEAVE 13

A. Generally 13

B. When Substitution of Paid Leave is Permitted 13

1. Generally 13

2. Types of Leave 13

a. Paid Vacation and Personal Leave 13

b. Paid Sick or Medical Leave 13

c. Paid Family Leave 13

d. Workers’ Compensation or Temporary Disability 13

e. Compensating Time 13

III. MAINTENANCE OF BENEFITS DURING LEAVE 13

A. Maintenance of Group Health Benefits 13

1. Generally 13

2. What is a Group Health Plan 13

3. What Benefits Must be Provided 13

4. Payment of Premiums by Employees 13

a. Methods of Payment 13

i. During Paid Leave 13

ii. During Unpaid Leave 13

b. Consequences of Failure to Pay 13

5. When the Obligation to Maintain Benefits Ceases 13

a. Layoff or Termination of Employment 13

b. Employee Notice of Intent Not to Return to Work 13

c. Employee’s Failure to Pay Preimums 13

d. “Key employees” 13

e. Other circumstances 13

6. Rules Applicable to Multi-Employer Health Plans 13

B. Employer’s Right to Recover Costs of Maintaining Group Health Benefits 13

1. When an Employer May Do So 13

2. How an Employer May Do So 13

C. Continuation of Non-Health Benefits During Leave 13

1. Generally 13

2. Non-Health Benefits Continued at Employer’s Expense 13

3. Non-Health Benefits Continued at Employee’s Expense 13

4. Specific Non-Health Benefits 13

a. Pension and Other Retirement Plans 13

b. Lodging 13

c. Holiday Pay 13

CHAPTER 8. RESTORATION TO THE SAME OR AN EQUIVALENT POSITION 13

I. OVERVIEW 13

II. RESTORATION TO THE SAME OR AN EQUIVALENT POSITION 13

A. General 13

B. Components of an Equivalent Position 13

1. Equivalent Pay 13

2. Equivalent Benefits 13

3. Equivalent Terms and Conditions of Employment 13

III. CIRCUMSTANCES AFFECTING RESTORATION RIGHTS 13

A. Events Unrelated to the Leave 13

1. Burden of Proof 13

2. Layoff 13

3. Discharge Due to Performance Issues 13

4. Other 13

B. No Fault Attendance Policies 13

C. Employee Actions Related to the Leave 13

1. Other Employment 13

2. Other Activities during the Leave 13

3. Reports by Employee 13

4. Compliance with Employer Requests for Fitness-for-Duty Certification 13

5. Fraud 13

D. Timing of Restoration 13

IV. INABILITY TO RETURN TO WORK WITHIN 12 WEEKS 13

V. SPECIAL CATEGORIES OF EMPLOYEES 13

A. Local Educational Agency Instructional Employees 13

B. Key Employees 13

1. Qualifications to be Classified as a Key Employee 13

2. Standard for Denying Restoration 13

3. Required Notices to Key Employees 13

a. Notice of Qualification 13

b. Notice of Intent to Deny Restoration 13

c. Employee Opportunity to Request Restoration 13

CHAPTER 9. INTERRELATIONSHIP WITH OTHER LAWS AND WITH EMPLOYER PRACTICES AND COLLECTIVE BARGAINING AGREEMENTS 13

I. OVERVIEW 13

II. INTERRELATIONSHIP WITH LAWS 13

A. General Principles 13

B. Federal Laws 13

1. Americans with Disabilities Act 13

a. General Principles 13

b. Covered Employers and Eligible Employees 13

c. Qualifying Events 13

i. Serious Health Conditions and Disabilities 13

ii. Triggering Events for Leave of Absence Rights 13

d. Nature of Leave and Restoration Rights 13

i. Health Benefits 13

ii. Restoration 13

iii. Light Duty 13

e. Medical Inquiries and Records 13

f. Attendance Policies 13

g. FMLA Incorporation of ADA Standards 13

2. COBRA 13

3. Fair Labor Standards Act 13

4. 42 U.S.C. §1983 13

5. Title VII of the Civil Rights Act 13

C. State Laws 13

1. State Leave Laws 13

a. General Principles 13

b. Effect of Different Scope of Coverage 13

i. Employer Coverage 13

ii. Employee Eligibility 13

c. Measuring the Leave Period 13

d. Medical Certifications 13

e. Notice Requirements 13

f. Return to Work Certification 13

g. Enforcement 13

2. Workers’ Compensation Laws 13

a. General Principles 13

b. Job Restructuring and Light Duty 13

c. Requesting Medical Information 13

d. Recovery of Group Health Benefit Costs 13

3. Fair Employment Practices Laws 13

4. Disability Benefit Laws 13

III. INTERRELATIONSHIP WITH EMPLOYER PRACTICES 13

A. Providing Greater Benefits than Required by the FMLA 13

B. Employer Policy Choices 13

1. Method for Determining 12-Month Period 13

2. Employee Notice Requirements 13

3. Substitution of Paid Leave 13

4. Reporting Requirements 13

5. Fitness for Duty Certification 13

6. Substance Abuse 13

7. Collecting Employee Share of Group Health Premiums 13

8. Other Benefits 13

9. Other Employment During FMLA Leave 13

IV. INTERRELATIONSHIP WITH COLLECTIVE BARGAINING AGREEMENTS 13

A. General Principles 13

B. Arbitration 13

CHAPTER 10. INTERFERENCE, DISCRIMINATION AND RETALIATION CLAIMS 13

I. OVERVIEW 13

II. TYPES OF CLAIMS 13

A. Interference With Exercise of Rights 13

B. Other Claims 13

1. Discrimination Based on Opposition 13

2. Discrimination Based on Participation 13

III. ANALYTICAL FRAMEWORKS 13

A. Interference Claims 13

1. Substantive Rights Cases 13

a. General 13

b. No Greater Rights Cases 13

2. Other Interference Cases 13

a. Standard Proof Structure 13

b. McDonnell Douglas 13

i. Prima Facie Case 13

(a) Exercise of Protected Right 13

(b) Adverse Employment Action 13

(1) Temporal Proximity 13

(2) Statements 13

ii. Articulation of a Legitimate, Nondiscriminatory Reason 13

iii. Pretext 13

(a) Timing 13

(b) Statements and Stray Remarks 13

c. Direct Evidence 13

d. Mixed Motive 13

e. Pattern or Practice 13

f. Potential Applicability to No Greater Rights Cases 13

B. Other Claims 13

CHAPTER 11. ENFORCEMENT, REMEDIES AND OTHER LITIGATION ISSUES 13

I. OVERVIEW 13

II. ENFORCEMENT ALTERNATIVES 13

A. Secretary of Labor 13

1. Initiation of Administrative Proceedings 13

2. Investigative Authority 13

3. Posting Violations 13

B. Civil Actions 13

1. Who Can Bring a Civil Action 13

a. Secretary 13

b. Employees 13