Statute Of Liberty

What to do with your debilitatingly fatigued, your pregnant, your deathly ill yearning to be free from work for 12 weeks
Magazine Contributor
7 min read

This story appears in the January 2001 issue of Entrepreneur. Subscribe »

The Family and Medical Leave Act (FMLA) provides employees with job security when they need it most. Under the law, eligible employees must be granted up to 12 weeks of unpaid leave for childbirth or adoption, serious health conditions or to care for family members with serious health conditions. The law, which affects businesses with 50 or more employees, requires employers to restore employees to their old jobs or the equivalent on their return.

While keeping a position open can be a strain for employers, it makes good business sense to retain your valued employees and bear with them through times of crisis or new family responsibilities. But not everyone who applies for FMLA leave-or sues over its denial-is a deserving employee in real need. Some use the law as an excuse for absenteeism or as another way to exact money from employers in court. The good news: Courts are finding in favor of employers who hold the line on abuse.

Consider a case recently decided by the 7th U.S. Circuit Court of Appeals. A bank teller with a history of absenteeism missed even more work after she became pregnant. After three written warnings about the absenteeism, the bank fired her. Six weeks earlier, the teller had applied for FMLA leave, claiming severe morning sickness. The employer didn't respond to the request because the employee hadn't worked at the bank long enough to be eligible for FMLA leave-and that became the basis for the teller's FMLA claim.

The teller cited a Department of Labor regulation stating that when an employer fails to advise an employee whether he or she is eligible for family leave prior to the date the leave is to begin, the employee will be deemed eligible. The district court that heard the case dismissed the teller's FMLA claim, however, and on July 24, the 7th U.S. Circuit Court of Appeals agreed. The court ruled that not only was the employee ineligible for leave, but the regulation itself was an example of a federal agency overstepping its authority. Congress had made its intent perfectly clear: Employees who had worked fewer than 1,250 hours for the company in the preceding 12 months were not eligible for leave. Yet under the regulation, the court observed, workers who had worked only eight hours before seeking family leave would be entitled to up to 12 weeks' leave with job security if their employers neglected to inform them promptly that they were ineligible-even if the employees suffered no harm because of it.

"The regulation allows an employee to claim benefits to which [he or] she is not entitled as a matter of law or equity, thus conferring a windfall by extinguishing the employer's defense without any basis in legal principle," the court ruled. That, the court declared, is both unauthorized and unreasonable. Several district courts had reached the same conclusion, but this was the first time the issue had reached the appellate level. Unless another federal circuit rules the other way, this ruling should close that eligibility loophole. Still, unless Congress forces the Labor Department to rescind its regulation (and there's no current move to do so), employers should still respond within two days to FMLA requests to avoid the possibility of a lawsuit.

Freelance writer Jane Easter Bahls specializes in business and legal topics.

Following the rules

The Labor Department's regulations are just one reason why the FMLA, for all its societal benefits, has been an administrative headache for employers. Signed into law in 1993, the FMLA not only ensures employees time off for childbirth and adoption, but also for a broad range of medical conditions, including heart attacks and heart surgery, back ailments that require extensive therapy or surgery, most cancers, strokes, severe respiratory conditions, appendicitis, spinal injuries, severe arthritis, pneumonia, emphysema, nervous disorders, serious injuries due to accidents on or off the job, migraine headaches and emotional distress due to miscarriages. In addition, the 7th U.S. Circuit Court of Appeals has ruled that numerous minor ailments can add up to a "serious medical condition." For instance, in the case of an employee who suffered from high blood pressure, hyperthyroidism, back pain, severe headaches, sinusitis, stress and depression, the combination was so debilitating that the employer got in legal trouble for denying a request for FMLA leave.

However, you don't have to take the employee's word for it and overlook extensive absences whenever an employee doesn't feel up to working. The law allows employers to require medical certification of claimed conditions, which must be supplied within 15 days. In one 11th U.S. Circuit Court of Appeals case, an employee who had been disciplined five times for absenteeism was admitted to a mental hospital after she had a nervous breakdown. The woman's husband refused to tell her employer why she was missing work, but the couple sued the employer under the FMLA for firing her. The court ruled that the employee did not provide enough information to put the company on notice that it should grant FMLA leave.

Note that an employee does not have to refer specifically to the FMLA when requesting leave. Notifying you of a serious medical condition and requesting some time off is enough to trigger your responsibilities under the law. A good strategy is to grant conditional FMLA leave as soon as it's requested to "start the clock," then request proper medical certification using standardized Labor Department forms. If the employee doesn't provide sufficient proof of need within 15 days, you can then rescind the conditional leave. But be sure you make it perfectly clear what documentation you need.

You're also allowed to require periodic recertification of the need for the leave, and then of the employee's fitness to return to work. But there are strict time limits on sending notices and providing certification, so make sure you're familiar with the details of the law.

While your employees are on FMLA leave, you may not demote, terminate or otherwise penalize them because of the missed work. Accordingly, it's important to keep track of which absences are covered by the FMLA and which are not. Suppose a worker with a history of absenteeism goes on FMLA leave. If the employee later returns to work and again has a spotty attendance record, you can discipline the employee over the non-FMLA absences but not those covered by the FMLA.

When an employee returns from FMLA leave, the law requires that he or she be placed either in the same job or in an equivalent job, with an equivalent level of responsibility, pay and benefits. To avoid charges that you demoted the employee because of the leave, have a third party confirm that the new assignment is indeed equivalent. If you can manage it, it's best to keep the old job open until the employee returns, temporarily reassigning duties.

Keeping a job open for months, tracking the employee's illness, determining if medical certification is adequate, keeping records on which absences are covered and which are not-clearly, it's not easy to administer an FMLA leave and avoid legal trouble. And there remains the possibility of abuse of the system. Still, try to keep in mind what your employees gain from knowing there's a good job waiting on the other side of their problems, and what your company gains by retaining a valued employee.

For more detailed information, see the FMLA compliance guide at
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