FMLA Leave for Headache Effectively Converts Full-Time Position into Part-Time Position; Employers' Shrieks Heard Across the Country
December 19, 2014
This one is a real headache.
Sam oversees a storage area for the Connecticut Department of Transportation (ConnDOT) and during certain times of the year, his position requires a fairly extensive amount of overtime. For years, Sam has suffered from “cluster headaches,” which are far worse than migraines and can last for days. Sam’s physician tinkered with medication over the years, but nothing helped.
Sam’s doctor later determined that Sam’s excessive work schedule during periods in which he worked overtime was one of the main factors that triggered his headaches. Therefore, he limited Sam’s work to no more than eight hours per day, and he also prohibited overtime. Permanently. These restrictions were provided on an FMLA certification form.
What do you think ConnDOT did here? Did it: a) agree to allow him to take FMLA leave whenever overtime would be required?; or b) tell Sam overtime is an essential function of the job, and if he could not work OT, he either needs to resign or seek disability retirement?
Here, ConnDOT chose the latter, reminding Sam that overtime was an essential function of his position and that under the union contract, if he couldn’t perform all the essential functions of his position, ConnDOT would need to try and transfer him to another position. ConnDOT also told him that he needed to submit medical certificate in order to take FMLA leave, but it made one thing clear: if the certification confirmed Sam could not work overtime, he would have to resign or seek disability retirement. As the story goes, Sam’s certification confirmed that he could not work OT. Not a single hour of it. Sam later resigned after ConnDOT could not locate another position for him. He later filed an FMLA lawsuit.
The Court Ruling
In response to Sam’s FMLA claim, ConnDOT made a rather sound argument, and one that other courts have bought into: an employee cannot seek leave for incapacity that may (or may not) occur at some point in the future. In other words, the employee can take FMLA leave only if he is presently incapacitated because of a serious health condition. Recall my old post about Pat Hurley, the CEO who asked his company to approve leave in advance for various dates over an upcoming two-year period because he needed to address his stress? There, a federal appellate court turned Pat and his FMLA claims away, finding that FMLA did not cover periods of time that “potentially” qualified as FMLA leave at some point in the future.
Wasn’t Sam effectively making the same argument here, and shouldn’t he suffer the same fate as Pat above?
Sam’s situation was different, said the court, and here’s why: The FMLA does not require a complete incapacity to work but rather permits leave to be taken intermittently or on a reduced leave schedule when “medically necessary.” Moreover, ConnDOT’s position that the employee must be incapacitated from working in order to obtain FMLA leave actually is belied by the FMLA regulations, which interestingly state as follows:
Absences attributable to incapacity [for chronic conditions] qualify for FMLA leave even though the employee . . . does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report . . . because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. 29 CFR 825.115(f)
As a result, the court determined that Sam could take “prophylactic” FMLA leave because his doctor opined that he could come to work when he is required to work certain excess hours [kind of like the excess pollen count].
Does the FMLA Turn a Full-Time Position into a Part-Time Position?
The court also addressed a larger issue that it acknowledged was a novel question: Could Sam use his annual FMLA allotment to effectively convert his full-time position into one that no longer required overtime? Or taken further, could an employee use FMLA leave also to convert a full-time position into a part-time version of the same? In short, the court said “Yes,” and reminded us that the FMLA does what the ADA cannot. Specifically, the ADA does not require an employer to eliminate an essential function (such as overtime) or provide an accommodation that would cause an undue hardship. However, the same is not true for the FMLA. Notably, the FMLA directly applies to situations where the employee cannot perform essential job functions, and as we know, there also is no undue hardship defense under the FMLA.
Tough FMLA luck for employers, so says this court. Santiago v. Connecticut Department of Transportation, et al.
Insights for Employers
There are several takeaways here:
1. If you want to hear more about this case and its practical impact on employers, access my recent FMLA webinar on the topic. For those of you paying really close attention, you will remember that I highlighted Sam’s case as a contrast to the Pat Hurley case above. So, access this webinar for extra FMLA nerd points.
2. There is NO undue hardship argument available under the FMLA. ConnDOT’s loss in this case is a reminder that the FMLA can have brutally harsh results for employers. As we see above, the FMLA presumes that it will cause employers hardship — as in Sam’s situation, when an employee is excused from essential functions of the job, these tasks fall directly to other employees and can wreck havoc on an employer’s operations. That’s the unfortunate reality of the FMLA. If we were in an ADA situation [for instance, if Sam had exhausted FMLA leave and was seeking additional leave under the ADA], we could make a case for undue hardship: other employees have been required to take on the duties of the absent employee; even more overtime will need to be paid out; managers have been required to cover certain tasks, leaving voids elsewhere; projects have been deferred because of inadequate staffing; and morale has been adversely impacted.
However, we are unable to make the same undue hardship argument under the FMLA. Why should that be? If the Department of Labor ever asked for my opinion [which, of course, it won't] on how to improve the FMLA regs, adding the “undue hardship” provision is one suggestion I’d offer. Of course, we would need to balance such a defense between the rights of employees and employers, but the concept should be in play, even in FMLA situations.
3. Don’t Forget that the FMLA and ADA may BOTH apply to a request for leave or reduced work schedule. When an employee requests FMLA leave for his own alleged serious health condition, an employer is well advised to initiate the ADA’s interactive process to evaluate whether the employee may require a reasonable accommodation in addition to FMLA leave. If an employee’s leave request implicates both the FMLA and the ADA, the employer must analyze its obligations under each act. Keep in mind: the employee is entitled to the benefits of whichever law provides the employee with the greater protection. For the reasons stated above, the FMLA offers more protection in this instance.
4. For those who really want to delve deeply into the legal morass here, I believe ConnDOT could advance a strong argument on appeal in this case. Specifically, as to the question of whether intermittent FMLA leave can effectively turn a full-time position into a permanent part-time position, the court seemingly overstates (at pages 16-17) the DOL’s guidance in this area. Citing a 2006 DOL report, the court found persuasive the DOL’s alleged position that an employee should be entitled to FMLA leave even though the employee’s condition is permanent and will prohibit the employee from ever working full-time. However, the DOL has not officially taken this extreme a position. In the DOL opinion letter cited by the court at page 17, the DOL states that FMLA is available to an employee even though the employee’s condition is permanent and the employee “will more than likely not be able to return to full employment in the near future.” (My emphasis) Not being to return to full employment in the near future is a far cry from not ever being able to return full-time. The court in this case took the DOL’s stated position too far, thereby undermining its reasoning on a very critical issue in this case.