The Family and Medical Leave Act - 10 Year Old Swill

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...