The Family and Medical Leave Act of 1993 (FMLA) recently uncorked its tenth anniversary vintage. I wonder how many employers filled a glass for a celebratory toast? While fine wine, prime beef and classic rock tend to get better with age, the past decade has fouled the FMLA.

In 1993, when President Clinton signed the FMLA, it simply promised job security for employee work absences due to serious family or medical issues. In a nutshell, the FMLA required covered employers to provide up to 12 weeks of unpaid leave to an eligible employee with an FMLA qualifying reason along with the restoration of their job or an equivalent position. To enforce these promises, the FMLA authorizes lawsuits for damages including lost wages and benefits, liquidated damages, attorney’s fees and other court-ordered relief. Courts have extended FMLA liability to the decision-makers.

Making FMLA wine has proved to be no simple task. Vinters must reconcile pages of complex and confusing government-issued regulations. Like wine made from grapes of unknown origin, the past decade has left a strange aftertaste in the mouths of those faced with the often thankless task of administering FMLA leave.

The FMLA was designed to allow employees time off from work for a "serious" health condition of the employee or the employee’s spouse, child or parent. To weed out non-serious conditions, the FMLA’s regulations listed a number of minor illnesses, such as the common cold, that were not intended to qualify for FMLA leave. Unfortunately, ten years of fermentation has soured reliance on these regulatory examples.

For example, in Rankin v. Seagate Tech., Inc., the court found that a viral illness amounted to a serious health condition under the FMLA since a cough suppressant had been prescribed to the employee. Other listed "minor" conditions such as ear infections and ulcers have been elevated to "serious" status. Thus, the examples in the regulations have been supplanted by a doctor’s certification of a "serious" health condition. Increased administrative burden on the family physician has been an unintended byproduct of this delegated legal duty.

Deciding that a condition qualifies for leave is only the first step, as one must decide how the leave is to be taken – in blocks or intermittently. While block leave is fairly straightforward, intermittent leave has become an administrative migraine made even more challenging when coupled with a lack of prior notice.

For example, in Spangler v. Federal Home Loan Bank, the court found that an employee who said she would be absent because of "depression again" was enough to trigger FMLA leave. Moreover, the regulations do not allow medical certification for every absence after initial approval of intermittent leave. Resorting to second and third doctor opinions often is not practical to address intermittent leave. Inability to validate claimed intermittent absences can invite abuse of FMLA leave, which is unfair to the employer and other deserving employees.

Finally, there has been much adieu over technicalities in designating FMLA leave. The FMLA’s regulations required designation within two days in order to count it against the 12-week entitlement. Failure to properly designate an absence as FMLA leave could result in an employee receiving more than the statutory 12 weeks of leave.

The United States Supreme Court appeared to have resolved this in Ragsdale v. Wolverine Worldwide, Inc., by invalidating the regulations and stating "the FMLA guaranteed Ragsdale 12—not 42—weeks of leave in 1996."

The welcomed "you get 12 weeks" certainty of Ragsdale appears to have evaporated. In Duty v. Norton-Alcoa Proppants, the court rejected an argument limiting FMLA leave to an absolute 12 week maximum because of a letter mistakenly designating an extended absence as FMLA leave despite expiration of 12 weeks and since a short-term disability policy was "intermingled" with the approved FMLA leave. Thus, it appears that an employer’s mistaken representations or confusing policies may lead to more than 12 weeks of FMLA leave in certain circumstances.

Given the developments of the last decade, it is difficult to predict how the FMLA will taste at its next big anniversary. There is little question that judicial tinkering and perhaps regulatory revision will require vigilance in implementing FMLA leave. While changes in the law are not within your control, you should review and revise your company’s policies to be consistent with legal developments to date. At a minimum, make sure your company’s leave policies and forms reflect the judicial pronouncements concerning the FMLA regulations.

Finally, assessment of any representations about eligibility or length of leave is essential. While these suggestions do not resolve every FMLA question, their consideration, along with consultation with your favorite FMLA "sommelier," may help avoid drinking the vinegar of FMLA litigation.

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