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The Family Medical Leave Act is becoming an increasing source of confusion and litigation in the workplace, according to employment attorneys across the nation. A growing number of employees are suing their employers, alleging that employers are not granting unpaid leave under the FMLA when they should and often retaliating against employees for seeking the time off. Employers claim that workers are abusing the FMLA, using it for purposes that it wasn’t intended, like taking time off for a headache or the flu. A major point of contention is confusion over whether stress-related illnesses rise to the level of a “serious health condition” covered by the act. The heightened tensions, as well as confusion over when and how the FMLA should be applied, has been noticed by the U.S. Department of Labor, which recently launched a public inquiry into the act. On Dec. 1, the Labor Department published a request for information and public comments to find out what’s working-and what’s not-with the 12-year-old law that allows employees to take up to 12 weeks of unpaid leave for various medical reasons. “We need some fresh thinking here,” said Victoria Lipnic, U.S. assistant secretary of labor for employment standards. “The [regulations] have been on the books for a dozen years now. That’s about the time when there’s been a significant amount of litigation when regulatory agencies should take a look at how are the regs doing.” Lipnic noted that there “have been these two big hot-button issues that employers and employee groups have talked about ever since the regs came out: What’s a serious health condition, and the use of unscheduled intermittent leave.” Mixed signal from courts Lipnic noted that in recent years, courts have produced mixed results on FMLA matters, confusing employers, employees and the Labor Department alike. She encouraged lawyers from both sides of the debate to speak up. “You guys have litigated this stuff. How big of a problem is this?” Lipnic said. Very big, according to employment attorneys representing employers, who say the Labor Department’s inquiry is an opportunity for corporate America to finally air its concerns about a medical leave problem that they claim has grown out of control. “Employers are so frustrated by employee abuse of the FMLA leave,” said Linda Hollinshead of Wolf, Block, Schorr & Solis-Cohen in Philadelphia, who represents employers in FMLA matters. “For instance, with chronic conditions like a migraine or stress, they’re frustrated and looking for ways to come down on intermittent leave. Employers are especially frustrated in the summer when stress and migraines come up on Fridays and Mondays.” Hollinshead, who is currently handling an FMLA lawsuit, said that she hopes the Labor Department takes a closer look at the intermittent leave provision, which allows individuals with chronic conditions to take absences every once in a while. She noted that it’s not the pregnancy leaves that upset employers, but “the very erratic usage of intermittent leave. “It creates an administrative headache. It’s a nightmare,” Hollinshead said. According to the Department of Labor, the number of FMLA-related complaints has remained steady during the last five years, averaging about 3,000 complaints a year-almost all of which get resolved at the administrative level. The big chill? But in recent years, employee rights attorneys note that workers are increasingly skipping the Labor Department route and instead filing private lawsuits, claiming that companies are putting up more of a fight when it comes to granting unpaid leave. “Companies are trying to chill employees from taking FMLA leave,” said employee rights attorney Charles Siedlecki, a solo practitioner in Chicago. In 2002, Siedlecki won the largest-known jury verdict in an FMLA lawsuit, an $11.65 million award for a man who charged that he was retaliated against for taking time off under the FMLA to care for his aging parents. Schultz v. Advocate Health, No. 01C-0702 (N.D. Ill. June 5, 2002). The case settled for an undisclosed amount on appeal. Siedlecki is currently handling several FMLA lawsuits on behalf of employees, including a class action. He claims that employers are forcing workers to go through unnecessary hoops to get FMLA benefits, often demanding costly second and sometimes third opinions from doctors when considering FMLA requests, or firing workers who take unpaid leave, claiming that they were ineligible for FMLA benefits. Most recently, Siedlecki filed an FMLA class action against AT&T Inc., alleging that the company is systematically interfering with and retaliating against employees seeking FMLA benefits. Butler v. Illinois Bell Telephone, No. 06C5400 (N.D. Ill.). The suit seeks to represent between 1,000 and 2,000 Chicago-area employees. The action alleges that AT&T went to the homes of employees on FMLA leave to make sure they were there, videotaped employees’ comings and goings from their houses, and told certain employees that they could only leave their homes to visit a doctor or a drug store. AT&T has not yet filed a response in court. Company officials were unavailable for comment. Fear of lawsuits Attorneys representing companies say employees are using minor ailments, such as the sniffles and the flu, as a reason to seek FMLA benefits. And many times employers, fearing a lawsuit, grant the leave without putting up a fight. “I find that employers certainly lean on the side of providing leave, no question about it,” said Christine Howard of Fisher & Phillips in Atlanta, who represents companies in FMLA matters. “The FMLA is not always clear if a condition qualifies, so probably nine out of 10 times, [employers] are more cautious in providing the leave.” Howard, who has handled a half-dozen FMLA cases in the last year, said she gets calls every week from clients seeking advice on FMLA matters, noting that it’s become her busiest area of work. Howard said that when the FMLA first took effect, employees with conditions such as cancer, back injuries or pregnancy, sought time off. But then the psychological injury, stress cases and flu symptoms started to roll in. “When the law first came out, I think people were under the impression that serious meant serious, things such as cancer, diabetes,” Howard said. “I think things like the flu, sinus issues-strep throat, even-I don’t think your average employer thought those items might be included.” In light of the Labor Department’s recent request for comments on the FMLA, Howard said that employers are hoping for some clarification on the definition of “serious health condition.” For example, she said, the courts in recent years have been split on whether stress rises to the level of a serious health condition. Intermittent sporadic absences are another big concern for employers, she said, noting that such unforeseeable leaves put operations at a loss. Michael C. Schmidt, in the New York office of Philadelphia-based Cozen O’Connor, is also seeking some clarity from the Labor Department for his corporate clients, particularly in the area of what constitutes a serious health concern. “It’s always hard to have an exhaustive list, but give better examples and a little more structure as to what was intended to be covered. That certainly would be helpful.” Schmidt, who recently settled an FMLA case on behalf of a company, said that confusion over what the FMLA covers and does not cover has led to “unnecessary litigation.” It’s turned into a sort of cough-and-flu kind of statute,” Schmidt said. “What that does is it not only increases the confusion as to what the rights and obligations are, it also takes away from the truly legitimate claims that the statute was designed to cover.” Schmidt said that, initially, companies erred on the conservative side when dealing with FMLA matters. But in recent years, he said, employers-hit with a host of medical claims-have “gotten more educated as to what their obligations really are,” and are scrutinizing requests more closely. “In the beginning, you try to be the nice human resource department,” Schmidt said. “But at some point, it starts impacting the company and the issue becomes, ‘What are our rights and how far do we have to let it go?’.” But clarity is needed on both sides of the fence, noted John Hyland of Rukin Hyland & Doria in San Francisco, an employment law firm that represents both employees and employers. “I think that there are people who are abusing it, but there are lots of people who have conditions that don’t fit neatly into the type of conditions that the legislators had in mind when passing the act,” Hyland said. Hyland also noted that some companies still don’t acknowledge the law at all. “Despite the fact that the FMLA has been around for quite some time, there are still some employers who simply won’t recognize that the law exists,” he said. On the flip side, Hyland noted that companies are also struggling to keep up with advances in medicine. For example, a person with a headache may now have some type of condition or disorder that was not known more than a decade ago when the law took effect. “Both sides will be clamoring for some type of bright-line rule as to what does or doesn’t qualify as a serious health condition,” Hyland said. “But trying to apply it is much more difficult.” Loring N. Spolter, an employee rights attorney in Fort Lauderdale, Fla., echoed concerns raised by lawyers for employees. And he is skeptical about the Labor Department’s inquiry into the FMLA, fearing that the federal agency is gearing up to propose new regulations that could hurt employees. “They’re going to use this as a pretext to strip away FMLA privileges,” Spolter said.

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