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When the Family and Medical Leave Act was enacted in 1993, employer groups warned that the law’s notice, qualifying condition and other implementation rules were vague and would lead to multiple, costly legal challenges. Time has borne those critics out. There is a strong trend in recent case law toward heightened employer liability and broader and more complicated employer responsibilities under the act. The FMLA provides for up to 12 weeks per year of unpaid leave for workers who give adequate notice and assist their employer in certifying the need to take time off for a qualifying personal or family medical condition. The FMLA generally covers private employers with 50 or more employees. Employee-plaintiffs, most seeking relief after being fired for absenteeism, have crowded the federal and state courts, typically demanding reinstatement and monetary damages. Employers need to be aware of how to head off such lawsuits. ‘NOTICE’ UNDER FMLA The final U.S. Department of Labor regulations implementing the FMLA went into effect in April 1995. One of the most difficult areas of the FMLA is determining whether an employee has provided adequate information to put the employer on notice that it needs to offer the worker leave. Making that difficult determination even more burdensome, the courts are finding that minimal notice from the employee is legally sufficient to bring FMLA requirements into play. In several key decisions, federal courts essentially have made employers responsible for observing, recording and interpreting employee statements and behaviors to determine if notice has been given of an FMLA-qualifying condition. Under these rulings, the employer can be held liable even when the employee has not said he or she has a specific medical problem or uttered the words “Family and Medical Leave Act.” Under the statute, an employee is not required to specifically mention the FMLA in order to be under the protection of the act. The law’s language states that if there is any indication that an absence might be for a “serious health condition,” the regulations implementing the FMLA require the employer to take the initiative to request more information. Employers, however, have won some federal court cases on this issue. One such case was last year’s McCarron v. British Telecom in the Eastern District of Pennsylvania. In that case, repeated employer requests for qualifying medical information were ignored by the employee. Employers facing a quandary over whether an employee has given “FMLA notice” should review all of an employee’s medical absences for any potential unspoken or nonspecific “notice” of an FMLA claim before taking any adverse action against an employee for absenteeism. Indeed, employers could be on notice of an FMLA-qualifying condition if they have any prior knowledge of an employee’s medical condition, including statements made by the employee to a supervisor. For example, in Spangler v. Federal Home Loan Bank of Des Moines, the 8th U.S. Circuit Court of Appeals held last year that an employee’s verbal statement that she was suffering from “depression again,” coupled with the company’s prior knowledge of that medical condition, provided constructive notice to the employer that Spangler was requesting FMLA leave — even though she did not specifically invoke the protections of the act. Other courts have equated a dramatic change in behavior with employee notice. In Brynne V. Avon Products Inc., the 7th Circuit reasoned earlier this year that certain health conditions may render the employee simultaneously unable to work and unable to notify the employer that he or she wants to invoke the act. The courts have sided with employers, however, in cases where an employee was found to be deliberately evasive with regard to a qualifying medical condition. One such case was Peeples v. Coastal Office Products Inc., decided by the 4th Circuit this year. ‘DESIGNATING’ LEAVE The issue of “designating” leave as “FMLA leave” was another concern for employers until the U.S. Supreme Court eased those worries last year. Under previous Labor Department rules, employers were penalized for failing to notify employees granted time off that the leave was being designated as FMLA leave. Failure of the employer to timely designate FMLA leave disqualified the employer from counting the nondesignated leave against the 12 weeks provided by the FMLA. In Ragsdale v. Wolverine Worldwide Inc., however, the high court invalidated that rule. Ragsdale was a victory for employers because it returned to plaintiff-employees the burden of proving that nondesignation of leave prejudiced their FMLA rights, and because it allowed penalties to be tailored to the severity of the prejudice. Nevertheless, it’s important for employers to realize that the Supreme Court in Ragsdale did not determine the validity of the Labor Department regulation requiring employers to provide individualized notice. Rather, the high court simply refused to allow an across-the-board sanction prohibiting employers who failed to timely designate FMLA leave from counting nondesignated leave as FMLA leave. The lesson is that employers should quickly and clearly designate employee time off as FMLA leave. HIGH STAKES As with most employment litigation, the stakes for employers litigating FMLA issues are high. In what may be the largest award ever in an FMLA case, a federal jury in Chicago, in Schultz v. Advocate Health and Hospitals Corp., awarded $11.65 million last year to a veteran hospital maintenance worker who claimed he was fired by his employer in retaliation for using unpaid family leave to care for a sick parent. The plaintiff claimed that he was fired for not completing work that could only have been completed if he didn’t take advantage of his FMLA leave rights. The jury agreed. It found that the plaintiff was terminated in retaliation for requesting and using unpaid family leave in monthly increments under the FMLA to care for a mother who suffered from heart disease and diabetes and a father who suffered from Alzheimer’s disease. The plaintiff previously had been recognized as a model employee. In the Schultz case, $10 million of the verdict against Advocate consisted of punitive damages arising from a count of emotional distress. Two of the plaintiff’s supervisors also were found individually liable. Each was assessed $200,000 in compensatory awards and $250,000 in punitive damages. The bottom line is that 10 years after the FMLA was passed, employers still face a myriad of leave-of-absence issues under the act. As noted, there is a strong trend in recent cases toward increased employer liability and a broader burden on employers to take special care in addressing leave questions by employees. Mark Zelek and Anne Marie Estevez are Miami-based partners in the international labor and employment practice of Morgan Lewis & Bockius.

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