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Oregon State University College of Business

The Family Medical Leave Act: 
An Ethical Model For 
Human Resource Policies and Decisions

 By Nancy J. King    Bio   email
Oregon State University College of Business

The following article was initially published in Volume 83, No. 2, Marquette Law Review 321 (Winter 1999) and is being republished with Marquette Law Review's generous consent.

 

I.  Introduction

The thesis of this Article is that legislation regulating the employment relationship may serve as an ethical basis for human resource decisions by employers.  The Article focuses on the Federal Family and Medical Leave Act of 1993,[1] a key example of recent congressional legislation that demonstrates this thesis.  The Family and Medical Leave Act of 1993 (hereinafter FMLA) provides an ethical basis for human resource decisions involving conflicts between an employer’s interest in having an employee at work to pursue the organization’s needs and an employee’s need to be away from work to attend to serious family needs that include the serious health condition of the employee, a family member, or the addition of a new child to the employee’s family.

Family medical leave laws promote ethical human resource decisions because they give employers a framework for making decisions that balance important and conflicting needs in an employee’s personal life with the needs of the employer.[2]  Ongoing application of this framework allows employers to develop ethical habits that are the core of ethical business decisions. The habits formed by employers in complying with family medical leave laws may then serve as the basis for ethical human resource decisions in areas not currently regulated by family medical leave laws.[3]

This Article will explore the relationship between legal compliance and ethical human resource decisions.  It will then examine specific aspects of family medical leave compliance that promote ethical human resource decisions and constitute an ethical framework for human resource decisions related to the balance of work and family.  The Article will then discuss how this ethical framework, comprised of ethical habits developed through compliance with family medical leave laws, may be extended to voluntary human resource policies.  Finally, the Article will discuss improvements needed in the FMLA or the FMLA regulations to further promote ethical human resource decisions.[4]

II.   Legal Compliance and Ethics: How Employment Laws Help Employers Make Ethical Human Resource Decisions

People need a system of ethics to help them develop values and make good decisions.  This is also true for employers making business decisions related to employees.  A system of ethics helps employers make human resource decisions about how to act in a coherent and consistent manner.  This contributes to the well being of our society.

A.   Ethical Business Behavior Results from Practice Applying Ethical Rules

Ethical behavior results from experience making decisions according to a system of ethical rules.[5]  Although it is possible for an individual to develop an ethical code and make ethical decisions as a matter of considered rational choice, most ethical codes and decisions are the result of habits, not individual rational choices.[6]  For example, Francis Fukuyama writes:

The most important habits that make up cultures have little to do with how one eats one’s food or combs one’s hair but with the ethical codes by which societies regulate behavior. . . .  Although it is possible to affirm an ethical code as a matter of carefully considered rational choice . . . the vast majority of the world’s people do not do so.  Rather, they are educated to follow their society’s moral rules by simple habituation . . . .  [T]he more highly developed ethical rules by which people live are nurtured through repetition, tradition, and example.[7]

And Thomas Kohler and Matthew Finkin write of the increasingly important role of employment experiences in the ethical development of people:

We make ourselves to be what we are through the activities in which we habitually engage.  In other words, it is the seemingly insignificant things we regularly do that count most.  Our daily routines quietly carve their grooves in us, almost without our notice, thereby steadily fashioning who we are, and subtly establishing the horizons by which we take our bearings and establish our meanings.  As noted, more people are spending more of their time performing paid work than ever.  Consequently, employment and the manner of its ordering has assumed a greater, if often overlooked, significance for the character of human beings.[8]

B.   An Ethical Framework for Human Resource Decisions May be Found in Some Employment Laws

Ethical rules are often found in laws.[9]  Law, and in particular legislation, can be an important tool to establish ethical norms and behaviors.[10]  This is a concept that has many contemporary supporters, but dates from Aristotle’s writings about ethics.[11]  Lon Fuller also draws on Aristotle in his theory about the dual moral purposes of law: to establish moral duties and to establish moral aspirations.[12]  This is a conceptual approach with which this author agrees, finding it encompasses a meaningful analytical tool to understand ethical issues relating to employment laws.  According to Fuller, a primary moral purpose of law is to establish moral duties that comprise the basic rules for an ordered society.[13]  In the context of laws regulating the employment relationship, employment laws that establish moral duties address the minimum requirements for the relationship between employer and employee.  An example of this is minimum wage laws.

A second moral purpose of law is to encourage people to behave in ways that will help individuals reach their full potential.[14]  Generally, laws that have an aspirational moral purpose will not impose legal sanctions on those regulated that fail to achieve the highest levels of good behavior envisioned by drafters of the legislation.[15]  Such sanctions would punish individuals for failure to measure up to their fullest potential, rather than punishing individuals for engaging in behavior that is morally wrong.[16]  Likewise, employment laws generally should not and do not impose legal sanctions for employers who fail to act in ways that constitute the highest levels of employer excellence, but rather focus on establishing obligations to comply with the moral duties we have established for employers in our culture.[17]  However, recognizing the moral aspirational purposes of employment laws is essential to development of an ethical framework for human resource decisions.  Employment laws that have a moral aspirational purpose encourage ethical human resource decision-making by employers outside the context of required legal compliance.  Such laws thereby constitute an ethical framework or model for human resource decisions affecting the quality of work life for employees.

C.      Employment Legislation Reflects the Need for Ethical Human Resource Practices

Currently, there is a call for businesses of all sizes to be more ethical.[18]  This call has resulted in a relatively new academic field of “business ethics” and regulating legislation, such as the federal sentencing guidelines, that impose significant penalties on businesses that fail to adopt ethical compliance programs.[19]  Other examples of legislation that have resulted from the need for businesses to be more ethical are “corporate constituency statutes” that allow managers to make corporate decisions for the benefit of non-shareholder stakeholders, such as the businesses’ employees.[20]

Arguably, the FMLA is another example of a law that has resulted from the need for businesses to adopt more ethical human resource practices.  Legislative history establishes that a primary motivation for the FMLA was the demographic changes that have occurred with regard to the composition of the workforce in the last forty years.[21]  These demographic changes include the following: the number of women in the workforce the substantial increase in the number of single-parent households and the aging of the American population.  It is estimated that twenty to twenty-five percent of the more than 100 million American workers have some care-giving responsibility for an older relative.[22]  The unavailability of traditional caregivers, who were predominantly women not in the workforce, was a key demographic factor supporting the adoption of the FMLA:

[T]he crucial unpaid caretaking services traditionally performed by wives—care of young children, ill family members, aging parentshas [sic] become increasingly difficult for families to fulfill.  When there is no one to provide such care, individuals can be permanently scarred as basic needs go unfulfilled.  Families unable to perform their essential function are seriously undermined and weakened. Finally, when families fail, the community is left to grapple with the tragic consequences of emotionally and physically deprived children and adults.[23]

Certainly, the FMLA reflects one of the primary moral purposes of law, which is to establish moral duties of employers to employees in situations involving the balance of work and family.  In this sense, the FMLA is characterized as a minimum labor standard for leave “based on the same principle as the child labor laws, the minimum wage, Social Security, the safety and health laws, the pension and welfare benefit laws, and other labor laws that establish minimum standards for employment.”[24]  However, to the extent the FMLA encourages employer policies that are more generous than the FMLA requires, the FMLA also reflects the second moral purpose of law, which is aspirational.  It is in the moral aspiration of the Act that the true ethical nature of the FMLA is revealed.[25]

D.  Legal Compliance May In Fact Promote Ethical Human Resource Decisions

Little academic writing exists about the relationship between legal compliance and ethical human resource decisions.  This does not mean that the relationship has gone unnoticed.  For example, the Ethics Resource Center, a non-profit, nonpartisan educational organization with a stated vision of an ethical world, conducted a series of “visioning” workshops in 1997 which explored the future of business ethics.[26]  One of the critical trends discussed at each session was the evolving relationship between legal compliance and ethics.[27]  Workshop discussions on the topic of “Corporate Ethics and Obligations Outside the Organization” addressed two related questions: “[T]o what extent does an organization have a moral obligation to consider the interests of non-stockholders, and what role should an organization play in its surrounding community?”[28]  “While most participants agreed with the extension of corporate social responsibilities beyond traditional organizational boundaries, they differed on specific corporate roles and responsibilities.”[29]  For example, while some workshop participants expressed the view that corporations should actively support family structures and community programs, others were concerned about for-profit entities becoming involved in these decisions.[30]  Workshop participants concluded that “the major challenges for the business and ethics communities will involve defining corporate obligations and limits as they relate to community stakeholders, and balancing these concerns with corporate obligations to stockholders.”[31]

Likewise, the Society for Human Resource Management (SHRM), which claims to be the world’s largest human resource management association and the leading voice of the human resource profession, conducted a survey in conjunction with the Ethics Resource Center.[32]  The “Business Ethics Survey Report” comments that “twentieth century labor legislation embodies our society’s enactment of many ethical obligations of employers to their employees.  Compliance with these laws makes ethical decisions easier.”[33]  One writer poignantly describes the dilemma that often makes human resource management decisions so difficult: “when management sends mixed messageswhen the rhetoric says ‘we really believe in caring for employees’ and everyone knows what they really care about is the bottom line.”[34]  To the extent that ethical obligations correlate with legal compliance obligations, this tension is reduced.

III. Aspects of Family Medical Leave Compliance that Promote Ethical Human Resource Decisions

Family medical leave laws address the frequent situation where an employee may have individual or family commitments that conflict with, and may need to take precedence, at least temporarily, over the employee’s job.  A situation that conflicts with the employee’s job responsibilities may include an employee’s need for surgery that will require a lengthy recovery.[35]  Another example is an employee who has a child with a chronic illness that precludes the child from attending school or daycare and requires the employee-parent’s care.[36]  Or, the employee may become a new parent and need time to get to know his or her new child and to adjust to new parental responsibilities.[37]  Family medical leave laws, and particularly the Family and Medical Leave Act of 1993, provide an ethical starting point for making these types of human resource decisions.[38]

A.   The Basic Requirements of the Federal Family Medical Leave Act

The FMLA entitles eligible employees to time off from work for serious health conditions of themselves, family members, and for birth, adoption, or foster placement.[39]  The basic leave provided by the FMLA is twelve work-weeks of leave in a leave calculation year.[40]  Employees will be eligible for FMLA leave if they have been employed twelve months and have worked at least 1250 hours in the twelve months prior to the leave.[41]  Employees must also work for an employer with at least fifty employees in a seventy-five-mile radius.[42]

While an employee is on FMLA leave, a replacement employee may not permanently fill the employee’s job unless the employer offers the employee reinstatement to an equivalent job.[43]  An equivalent job is one that is virtually identical to the employee’s former job and includes equal working conditions, privileges, prerequisites, and status.[44]

The FMLA protects employees from discipline or discrimination for using family medical leave.[45]  This protection effectively modifies even no-fault absenteeism policies such that FMLA absences may not be counted as incidents of absenteeism.[46]  Bonus programs that reward good attendance must disregard FMLA absences.[47]  FMLA leave users are also protected from retaliation for using FMLA leave, such as retaliatory unfavorable job assignments upon return to work.[48]

FMLA leave need not be paid.[49]  However, during FMLA leave, employees are entitled to continue their employer-provided health care coverage at the same cost to the employee as if the employee worked.[50]  Employees on FMLA leave may also use and substitute accrued paid sick leave under an employer’s sick leave policy and may use and substitute accrued paid vacation during family medical leave.[51]

B.   Ethical Habits Employers Are Developing in Their Efforts to Comply with Family Medical Leave Laws

Employees complying with FMLA apply a framework for human resource decisions that leads to ethical human resource decisions.  Not every legislative act addressing important public policy issues related to the workplace is ethical in nature or could be used as an ethical basis for human resource decisions.  However, in the case of the FMLA, Congress created a law that will result in ethical human resource policies as employers comply with the requirements of the FMLA.[52]

The legislative process leading to enactment of the FMLA involved years of support-building, Congressional hearings with scores of witnesses, markups, and compromises, and two vetoes by President Bush.[53]  The first family and medical leave bill was introduced in 1985, with similar bills introduced each year from 1987 through 1989.  President Bush vetoed family medical leave bills passed by Congress in 1990 and 1992.[54]  Finally, the FMLA became law when President Clinton signed it on February 5, 1993.[55]

In the protracted legislative process leading to the enactment of the FMLA, lawmakers and those to be regulated by the FMLA, employers and employees, thoroughly examined and debated the divergent positions of the parties.[56]  Effective communication between legislators and constituents to be regulated is a measure of the ethical nature of a law.[57]  Where there has been effective communication in the legislative process, the resulting legislation is more likely to be ethical in a substantive sense.[58]  The FMLA is an example of a law that was enacted in a process involving such communication.[59]  The communication process worked effectively and a well-informed Congress balanced the interests of employers and employees.  Testimony concerning the changing nature of the American workforce and the needs of employees to meet family emergencies without risking their jobs was balanced with testimony about the important interests of employers to have productive workers and remain competitive.[60]  This balancing is expressly recognized in the findings and purposes section of the FMLA.[61]  In these findings, the interests of employers are termed “legitimate” and are specifically recognized as worthy of accommodation in the FMLA such that they operate as constraints on the manner in which FMLA’s purposes will be pursued.[62]  Congress also specified nondiscrimination on the basis of sex and promotion of equal opportunity for men and women as a second basic limitation on the manner in which the FMLA’s purposes should be pursued.[63]  From an ethical perspective, the second constraint is essentially a requirement of consistency and fairness.

The habits developed by employers who comply with the FMLA will lead to ethical human resource decisions in matters not currently regulated by the FMLA.  In other words, the FMLA provides an ethical framework that employers may apply to many human resource decisions involving the conflicts between employee family responsibilities and the workplace, including situations not currently regulated by the FMLA.  If employers apply this ethical framework to family conflicts that are not regulated by the FMLA, the result will be more ethical human resource practices and policies.

The ethical framework provided by the FMLA has two key attributes.  First, it requires balance between the needs of the employer to have employees engaged in the employer’s work with the need for an employee to occasionally be away from work to fulfill the employee’s family care-taking responsibilities.[64]  Second, the ethical framework also requires consistency and fairness in the treatment of groups of employees, such that employees with similar family care needs are treated equitably.[65]  It is in this balance, consistency, and fairness that ethical business decisions are promoted by compliance with the FMLA.

This Article first examines the ethical habits employers learn by complying with the FMLA before turning to the tremendous potential for application of the ethical framework provided by the FMLA to work family conflicts not regulated by the FMLA.

1.   The Habit of Providing Job Security to Employees on FMLA Leave

     When employees take FMLA leave, they may leave their jobs for up to twelve weeks with the assurance that they will be reinstated to the same or an equivalent job when they return at the end of the leave.[66]  This assurance of job protection is a valuable attribute to an employee who otherwise might well be an at-will employee with no such job security and one who could be replaced during the leave at the whim of the employer.[67]  Even employees with disabilities who may be granted leave as a reasonable accommodation do not have the level of job protection the FMLA affords.[68]  Under the Americans with Disabilities Act (hereinafter ADA), the employer may determine that a continued provision of leave to a disabled employee as a reasonable accommodation constitutes an undue hardship and thereby be permitted to lawfully fill the employee’s position with another worker.[69]  For this reason, employees protected by the ADA also benefit from having their leaves designated as FMLA leaves. When the employee is entitled to FMLA leave, the employer has no defense similar to the ADA’s undue hardship defense that would relieve the employer of its obligation under the FMLA to provide job protection and reinstatement.[70]

     The balance of employer/employee needs is reflected in the fact that the FMLA is limited to essentially short-term absences not exceeding the twelve work-week FMLA-protected period.[71]  Also, the balance is apparent in the job security provisions available to employees under the FMLA; for example, an employee on FMLA leave is not protected from job elimination for bona fide business reasons.[72]  This limitation on job security is not unfair to the employee on FMLA leave.  Rather, it means employees on FMLA leave do not have any greater rights than other employees where jobs are eliminated for valid business reasons.[73]

The FMLA also establishes rules of fair behavior for employers in the form of non-retaliation provisions.[74]  These non-retaliation rules prevent unfair behavior by employers that would frustrate the job security provisions of the FMLA.[75]  For example, the non-discrimination provisions of the FMLA protect employees from manipulative actions by employers that are designed to discourage employees from either taking FMLA leave or to thwart employees’ reinstatement rights.  For example, it would violate the FMLA for an employer to reassign essential job duties to other employees, thereby eliminating the employee’s job, to preclude an employee from taking FMLA leave.[76]  And it would also violate the FMLA for an employer to reinstate an employee to a job on a different shift to discourage the employee from returning from FMLA leave.[77]

The job security provisions of the FMLA are superior to most other legal or contractual job security protections for employees, are generally applicable without exception, and therefore lead to consistent ethical practices by employers to provide a high level of job security to employees on FMLA leave.  Nonetheless, the job security provisions reflect a balance of employer/employee needs because of their short-term nature and because no job security is provided in bona fide job elimination situations where other employees not utilizing FMLA leave would have no job security.[78]

2.   The Habit of Helping Employees Balance Family and Job Responsibilities in Situations Involving Employee Pregnancy and Childbirth

The FMLA sets minimum leave time for both male and female employees to use for the birth, adoption, and foster placement of a child and allows the new parents to use this time during the twelve months after the child is born or placed with the family.[79]  This type of leave is commonly referred to as “parental leave.” Prior to the FMLA, employers may have provided maternity disability leave to address the period of time a female employee was disabled by pregnancy or childbirth.  However, employers who provided maternity disability leave may not have chosen to provide parental leave for both male and female employees to bond with new children following the period of time female employees were no longer disabled by pregnancy or childbirth.

The FMLA’s provisions for parental leave demonstrate the ethical attributes of consistency and fairness, which the FMLA requires an employer to apply. [80]  Under the FMLA, employers form habits of treating both male and female employees as new parents, rather than just focusing on female employees and the pregnancy disability issues of female employees.  Any new parent, male or female, is entitled to use FMLA leave to bond with their new child.[81]

The parental leave provisions also reflect a balance of employer and employee needs.  Specifically, the FMLA recognizes the employer’s need to limit the burden an absence of a married couple could present when both parents work for the same employer.  Under the FMLA, parents who work for the same employer must share the twelve weeks of FMLA leave for birth, adoption, or foster placement.[82]  According to the U.S. Department of Labor’s comments that accompanied the final FMLA regulations, this provision requiring spouses to share the twelve weeks of leave for birth, adoption, or foster placement of a child was intended to eliminate any incentive for employers to refuse to hire married couples due to the fear that both parents would be unavailable for extended periods of time when a new child joined the family.[83]  Although the spouses are limited to a combined twelve weeks of FMLA leave for birth, adoption or foster placement, a female employee who is disabled by pregnancy is permitted to use all or a portion of her twelve-week FMLA entitlement for her own serious health condition.[84]  Her use of part or all of her FMLA entitlement for pregnancy disability does not reduce the amount of leave the other spouse may use for birth, adoption, or foster placement.[85]  For example, if a married couple were employed by the same employer and the female employee was disabled by pregnancy for eight weeks, the female employee could use four more weeks of leave for the birth of their child and the male could use eight weeks of leave for the birth of their child.[86]  Again, the FMLA reflects a careful balance, protecting both employer and employee needs.

3.   The Habit of Treating Employees who are Adoptive or Foster Parents as Favorably as Employees who are Parents of Newborn Children

The FMLA encourages employers to view employees who adopt children or act as foster parents of children as parents with equal rights to leave as employees who are biological parents.  This is yet another example of the FMLA promoting consistent and fair human resource decisions.  An employee who adopts a child or becomes a foster parent may use all or part of his or her twelve-week family leave entitlement to bond with the newly adopted or foster-placed child.[87]  Like biological parents, the leave for adoption or foster placement must occur within twelve months after the placement of the child with the employee.[88]

There is an important exception that allows use of FMLA leave in adoption or foster placement situations prior to the placement of the child with the employee.  This exception allows the employee who is attempting to become an adoptive parent or foster parent to use FMLA leave to protect an absence from work if it is required for the placement for adoption or foster care to proceed.[89]  For example, the adoptive or foster parent-to-be may be required to attend counseling sessions, appear in court, consult with his or her attorney or the doctors representing the child’s biological parent, or submit to a physical examination.[90]  All these preparatory efforts by an employee are protected leave under the FMLA.[91]  Leave for preparatory efforts to adopt or become a foster placement is consistent and fair when compared to the treatment afforded biological parents and is analogous to use of FMLA for prenatal appointments.

4.   The Habit of Respecting Employees’ Responsibilities to Provide Psychological Comfort or Care to Seriously Ill Family Members

In its provisions for compassionate leave, the FMLA recognizes the emotional needs of family members to have employees present when they are experiencing serious health condition, for example, when an employee’s parent has a potentially terminal illness or his or her child is undergoing surgery.[92]  Again, the FMLA promotes consistency and fairness in human resource decisions because it recognizes that caretakers provide not only physical care but also psychological comfort to family members.[93]  The inclusion of compassionate leave in the FMLA is of significant importance given the increasing unavailability of the traditional caregivers in our society.[94]  It also provides a limited solution to some of the work versus family conflicts that confront most employees.[95]

On the other hand, the FMLA balances the employee’s need for compassionate leave with an employer’s need for verification of a legitimate reason for absence to prevent abuse.  This balance is demonstrated by the medical certification provisions which allow an employer to require an employee to present medical certification to support his or her use of the FMLA for the purpose of providing psychological comfort or care to seriously ill family members.[96]

5.   The Habit of Making the Care of Children with Serious Health Conditions a Priority, Without Distinction for Marital Status of the Children’s Parents

The ethical attribute of consistency and fairness on which the FMLA is based is nowhere more apparent than in its provision of leave for an employee to care for a child with a serious health condition.[97]  The FMLA incorporates a very broad definition of covered children.  Employees may use FMLA leave to care for a child if the child is their “son or daughter.”[98]  The definition of son or daughter includes biological, adopted, foster, and stepchildren.[99]  It also includes a child who is the legal ward of the employee and situations where the employee is in a relationship of in loco parentis to the child.[100]  In loco parentis rules allow an employee who is not the legal or biological parent to use FMLA leave to care for the child if the employee can show he or she has day-to-day responsibilities to care for the child and financially supports the child.[101]

Nor does the FMLA deny the use of FMLA leave to employees who do not have custody of their children.  Under the FMLA, there is no requirement that the child live with the employee; an employee with a biological, adopted, or stepchild who is not living with the employee would qualify if the child has a serious health condition and the employee is needed to provide care.  Control of potential employee abuse in such situations is found in the employer’s ability to require medical certification to support the use of FMLA.[102]  In recognition of the ethical balance between employer and employee needs, the employer may require that the employee obtain a medical certification from the child’s health care provider stating, among other things, that the child has a serious health condition and the employee is needed to provide care.[103]

Finally, the use of FMLA leave to care for children with serious health conditions is not limited to the employee’s children under eighteen years of age.  If the child, even though older than eighteen years of age, is incapable of self-care due to a serious health condition, the parent may use FMLA leave to care for the child.[104]  For example, an employee may take leave to care for an adult child who contracts cancer or kidney disease, such that the adult child needs the employee-parent’s care.[105]  There is no requirement that the child has been mentally or physically disabled as a minor or prior to contracting a serious health condition.[106]

Clearly, the FMLA puts a high priority on the provision of leave to caretakers of children with serious health conditions and ensures that all children are treated fairly and consistently, without regard to marital status of the employee/parent.

6.   The Habit of Providing Flexible Work Schedules for Employees with Chronic Serious Health Conditions or Caring for Family Members with Serious Health Conditions

The FMLA concepts of “reduced schedule” and “intermittent” leave provide great flexibility to an employee to balance work and family issues.[107]  “Reduced schedule” FMLA leave may result in a part-time schedule for an otherwise full-time employee.[108]  The availability of intermittent FMLA leave may allow an employee to use FMLA leave when the employee’s serious health condition incapacitates the employee on an episodic basis.[109]  For example, an employee with asthma may use FMLA leave a day or two at a time when the employee’s asthma keeps the employee from working, rather than as a block of time.[110]

Either concept may result in spreading the employee’s twelve-week FMLA entitlement over a period that is longer than twelve workweeks.  This occurs because only the FMLA time actually used is counted against the employee’s twelve-week entitlement.[111]  For example, an employee with a serious health condition that limits the employee to a four-hour workday, but who otherwise would be scheduled to work eight hours a day, will be able to use four hours of FMLA leave a day for up to twenty-four work-weeks before exhausting his or her FMLA leave entitlement for the year.[112]  Likewise, an employee who uses one day of FMLA leave per week and works the remaining four days of a five-day work-week, is using only one-fifth of a work-week of leave in each workweek and may do so for up to sixty workweeks before exhausting his or her leave entitlement.[113]  In fact, an employee using only one day of FMLA per workweek will be entitled to a new twelve-week FMLA entitlement before exhausting the previous twelve-week entitlement because the employee will enter a new leave calculation year prior to using all the FMLA leave available.

Employees may also use “reduced schedule” and “intermittent” FMLA leave to care for family members who have serious health conditions.[114]  For example, the employee with an elderly parent who has an Alzheimer’s condition may need to relieve the parent’s caregiver occasionally due to illness of the caregiver or other situations where the caregiver is unavailable.  If the employee uses a few days of FMLA leave on an intermittent basis or reduces his or her schedule a few hours a day for a few weeks, the FMLA will enable to employee to provide the care the parent needs while retaining his or her job.[115]

Some employers may view the concepts of reduced schedule and intermittent leave as interfering with employers’ prerogatives to set employee work schedules and to require regular attendance by employees.[116]  In the case of unanticipated leave, the FMLA’s reduced employee notice provisions admittedly allow an employee to provide little notice to the employer that the employee may need reduced schedule or intermittent leave.[117]  This is true whether the unanticipated absence is for the employee’s or a family member’s serious health condition.[118]  While the employee is expected to give up to thirty days of advance notice of the need for FMLA leave in situations where the need for the leave is anticipated, the employee need only give as much notice as is practical when thirty days notice is not practicable.[119]  In situations where the need for the leave is unanticipated, the employee may well be permitted to notify the employer of his or her need to be absent on the very day that the employee is unable to work.[120]  For example, if an employee has an asthma attack or the employee with a parent requiring a caregiver for a serious health condition learns the caregiver has resigned unexpectedly, the employee may notify the employer on the day the employee learns of the emergency that the employee is unable to work. In some cases, the employee’s notice will be timely if it is made within one to two business days after the need for FMLA leave occurs. [121]

Nor do the medical certification requirements of the FMLA provide much control of an employee’s use of intermittent leave.[122]  While the employer may require a medical certification from the employee’s health care provider that certifies that the employee has a serious health condition requiring the employee to be absent on an intermittent or reduced schedule basis, the medical certification may cover an extended period of time.[123]  When an employee has a chronic serious health condition such as asthma, the employer may not require the employee to provide a separate medical certification for each use of intermittent leave.[124]  These medical certification requirements also apply to the use of reduced schedule or intermittent leave by an employee to care for a family member with a serious health condition.[125]

Because an employer may not require a separate medical certification for each absence due to an employee’s or family member’s long-term or chronic serious health condition, provided the employee has produced a medical certification that covers the serious health condition for a period of time, the employer may find it has little ability to verify that a particular absence was protected by the FMLA.[126]  The employer will generally have to rely on the employee to truthfully advise the employer that the absence was for FMLA purposes.[127]  Of course, the ability of an employer to require a second or third medical certification from independent health care providers is of some benefit to an employer trying to control absenteeism or misuse of FMLA leave.[128]

The FMLA concepts of reduced schedule and intermittent leave have greatly increased the flexibility of employer policies that relate to the balance of work and family.  As the research demonstrates, this flexibility is just the type of change needed and desired by many workers.[129]  However, employers may argue that little balance between the needs of employers and employees is reflected in the intermittent and reduced schedule provisions of the FMLA because employers have legitimate interests to have employees at work on a regular and consistent basis and to have advance notice of absences.  It could be argued that the ethical framework fails on this point because these leave provisions fail to accomplish the balance so evident in other parts of the FMLA.  It is true that employers may find it much more difficult to accommodate an employee’s unpredictable absences, especially when those absences do not necessarily extend for a full workweek or even a full workday.  Some provision for a limit similar to the undue hardship[130] concept found in the Americans with Disabilities Act would alleviate this situation and is recommended as a solution to correct this imbalance between employer and employee needs in the FMLA.  Because the FMLA expressly provides in the statutory text that FMLA leave may be used on an intermittent or reduced schedule basis, the legislative intent is not ambiguous.[131]  There appears to be little room to institute an undue hardship limitation through statutory construction or administrative regulation.[132]

7.   The Habit of Communicating with Employees About Employees’ Obligations During Leaves and the Consequences of Failing to Meet
Those Obligations

Employers have many affirmative obligations under the FMLA to communicate with their employees about the FMLA.[133]  For example, the FMLA is one of the few laws that require an employer to distribute written information about employee rights to employees.[134]  If the employer has an employee handbook, the employer must also include information about the FMLA in the handbook.[135]  The general notice requirements apply to all employees, even employees with no current need for FMLA leave.[136]

There are also individual notice requirements that employers owe to employees.[137]  When an employee notifies an employer of the need to take leave for a reason that would be covered by FMLA, even if the employee does not mention the FMLA, the employer must individually communicate in writing with the employee to advise the employee that the leave is being designated as FMLA leave, that it will be counted against the employee’s FMLA entitlement, and to advise the employee of specific rights and obligations which relate to FMLA.[138]

An employer’s failure to communicate as required by the FMLA is generally construed to favor the employee.[139]  For example, an employer must advise an employee that a medical certification will be required for approval of the leave or that a fitness for duty certification will be required before the employee may return from the leave in the written notice to the employee at the time FMLA leave begins.[140]  An employer’s failure to timely notify employees of medical certification or fitness-for-duty certification requirements makes the requirements unenforceable.[141]  Likewise, failure to notify an employee that paid leave is being counted as a use of FMLA leave means the employee may utilize paid leave without having his or her twelve-week FMLA leave entitlement reduced, at least until the employee is otherwise notified.[142]  Further, retroactive designations of FMLA leave after an employee returns to work are generally not permitted.[143]

All these employer notice requirements require an employer to communicate essential terms of an FMLA leave with the employee and protect the employee from adverse action if the communication does not occur.  An administrative process that ensures communication by employers with employees best meets these provisions.  Such an administrative process promotes consistency and fairness in these communications, an essential component of the ethical framework created by the FMLA.  However, in some situations, the notice provisions of the FMLA fail to capture a perfect balance between employer and employee needs.  This is because employers have a disproportionate notice burden when compared to the lenient employee notice provisions.  Technical noncompliance by an employer with its notice obligations may result in additional leave rights being afforded to an employee.  Consequently, in Section V of this Article, improvements to the FMLA or the FMLA regulations are recommended to restore balance to the FMLA and further promote ethical human resource decisions.

8.   The Habit of Protecting Employee Privacy Related to Medical Issues

The FMLA requires protection of employee privacy about medical issues. Employers may only obtain limited information from an employee’s doctor to support a use of FMLA leave.[144]  These rules prohibit an employer from delving into the medical condition of an employee beyond the limited job-related information that the medical certification requirements permit.[145]  For example, an employee’s health care provider need not provide any information to the employer about the prognosis for the employee’s recovery.[146]  Further, although the medical certification provisions require a statement of the medical facts, which support the health care provider’s conclusion that the employee or family member has a serious health condition, the employer is not entitled to a diagnosis.[147]

Employers are entitled to even less information from an employee’s health care provider related to the fitness of an employee to return to work.[148]  When a fitness for duty certification is permitted by the FMLA, a simple statement from an employee’s healthcare provider that the employee is fit for duty is sufficient to return the employee to work.[149]  However, in some cases a fitness for duty certification will not be allowed by the FMLA.[150]  For example, a fitness for duty certification may only be required if the employer has a uniformly applied policy or practice that requires all similarly situated employees to present a fitness for duty medical certification prior to returning to work.[151]  Further, a fitness for duty medical certification may only be required related to the condition for which the employee used FMLA leave and then only if it is job-related.[152]  Finally, a fitness for duty medical certification provides the employee’s health care provider’s opinion that the employee is fit or not fit for duty.[153]  No independent medical examinations may be required by an employer to assess the employee’s fitness for duty.[154]

In addition to the medical privacy provisions of the FMLA, the protections for employees found in the medical confidentiality rules of the ADA are also available to employees on FMLA leave.[155]  Therefore, employers must keep medical information about employees on FMLA leave confidential with few exceptions as provided by the ADA.[156]  These exceptions are very limited, although employers may advise supervisors of necessary work restrictions and accommodations made for employees. Employer documents, including forms related to the employer’s administration of FMLA leave, must be kept in confidential medical files to the extent they contain confidential medical information, consistent with the ADA.[157]

The combined confidentiality requirements provided by the FMLA and the ADA increase the likelihood that employees will be able to maintain a reasonable level of privacy about their medical conditions and those of family members while still being able to utilize FMLA leave.  These combined confidentiality requirements also protect employers’ needs for sufficient medical information to support FMLA leaves and prevent employee abuse.  The resulting balance reinforces ethical practices in this regard by employers.

9.   The Habit of Treating Absences for Family Obligations and Employee Medical Conditions as Excused Absences

One of the most important habits employers develop by complying with the FMLA is the practice of treating FMLA leaves as excused absences for disciplinary reasons.  When an employee uses the FMLA, the absence is protected and may not be used for any punitive purpose by the employer against the employee.[158]  This protection ensures that an employee who utilizes FMLA leave will not be penalized for the absence under an attendance policy or have the absence assessed negatively when applying for a promotion.[159]  Even no-fault attendance policies must excuse FMLA absences.[160]

If an employee advises an employer of the reasons for an absence in sufficient detail to allow the employer to recognize an absence as FMLA-protected, the absence is protected.[161]  This is true even though the employee and employer failed to recognize an absence was protected by the FMLA.

Because no exception under the FMLA allows an employer to discipline or terminate an employee for excessive absenteeism that results from use of FMLA-protected absences, employers must revise absenteeism policies to make exceptions for FMLA-protected absences.  In essence, employers must treat FMLA-protected absences as excused.  The required consistency of treatment of FMLA absences by FMLA-covered employers is one of the attributes of the FMLA most likely to increase the ability of employees to balance work and family.  However, inability to enforce no-fault absenteeism policies and the accompanying burden of tolerating absent employees is one feature of FMLA compliance, that employers may well contend does not reflect an appropriate balance between employer and employee needs.  Because the ability to take FMLA leave without jeopardizing one’s job, including being subjected to discipline, is so critical to the ethical framework established by FMLA, this contention by employers should be rejected.

The FMLA appropriately recognizes an employee’s need for leave to care for themselves or family members can only be met if the employee is provided job security and protected from discipline for FMLA-protected absences.  The employer’s need to discipline employees for absenteeism is only valid when the employee is not on FMLA-protected leave. Because the minimum leave entitlements of FMLA are spread among all covered employers, all covered employers operate under this minimum employment standard.[162]  It is fair to make this protection against discipline part of the FMLA compliance package.

IV. How Ethical Habits Developed Through Compliance With Family Medical Leave Laws May be Extended to Voluntary Ethical Human Resource Policies

Compliance with the FMLA leads to ethical human resource decisions because those decisions are made within an ethical framework that has two essential attributes: balance between employer and employee needs and a requirement of consistency and fairness in the treatment of groups of employees with similar family care needs, leading to equitable treatment of employees by employers.

Compliance with the FMLA requires employers to practice making ethical human resource decisions according to the FMLA’s rules.  As a result, employers develop a number of ethical habits, as outlined above, when dealing with employees who need to provide care to family members in ways that conflict with their job responsibilities.

There is no reason for employers to limit their application of these ethical habits to situations currently covered by the FMLA.  Employees have analogous work or family conflicts, which currently fall outside the employer’s compliance obligations under the FMLA.  Yet, the ethical habits employers have developed in their compliance with the FMLA seem very well suited to these work or family conflicts.  If employers apply the ethical framework created by the FMLA situations not now covered by the FMLA, ethical human resource decisions will be more likely to result.

A.   The Policy of Allowing Employees to Balance Important Work and Child Rearing Responsibilities

The FMLA provides a legal right to family medical leave when a child has a serious health condition, but it does not help parents with leave situations caused by their children’s illnesses which are not serious health conditions.[163]  Often a parent may be unable to work because his or her child has a temporary illness that makes the child unable to attend school or daycare, yet the parent is not entitled to leave under the FMLA.  For example, a child with an ear infection or a cold may not have a serious health condition because the child’s incapacity does not last longer than three consecutive calendar days nor require continuing treatment by a health care provider.[164]  Nor does the FMLA provide leave to parents to take an active part in a child’s education, such as time to volunteer in the child’s classroom or attend parent-teacher conferences.[165]

Employers who have become accustomed to allowing employees leave to care for children with serious health conditions may find it is not that difficult to also allow employees to use job-protected leave for non-serious health conditions of their children or to participate in their children’s schools.  Some employers have even expanded paid sick leave policies to allow employees to use this type of leave to care for family members.

Application of the ethical framework of FMLA to the issues of sick children and participation in the school activities of children would allow a balancing of employer and employee needs.  Here, the employer needs to have sufficient employees at work on a regular basis in order to accomplish its business objectives and is concerned about retention of its workforce and the cost of temporarily replacing the employee during the leave.  Employees, on the other hand, may need to provide care to children who are too ill to attend school or daycare and are unable to arrange adequate alternative care.  Additionally, participation in a child’s school activities is a family care activity that has value to the family as well as to the health of our educational institutions.  The current balance struck in the FMLA is to provide time off for the employee but not require the employer to pay the employee during the leave.  An employer with a paid sick leave policy that allows employees to use paid sick leave to care for family members must allow employees to use paid sick leave during a family leave absence, consistent with the terms of its sick leave policy.  Nothing in the FMLA mandates that an employer have a paid sick leave policy to allow employees to use sick leave to care for family members, or precludes an employer from changing its policy.[166]  In like fashion, the employer and employee needs in the situation of sick children and school participation leave could be balanced just as they are under the FMLA.

The unpaid nature of FMLA leave has been identified as a significant barrier to the use of FMLA leave by employees.  President Clinton recently issued an executive memorandum outlining steps he plans to take in an effort to make family and medical leave more affordable for employees in both public and private sectors.[167]  Consistent with this memorandum, President Clinton directed the U.S. Department of Labor to issue a rule to allow states to use their unemployment systems to offer paid leave to new mothers and fathers following birth or adoption.[168]  By advocating use of unemployment insurance benefits to help employees afford parental leave, the President’s proposal respects the legitimate cost concerns of employers while addressing the needs of employees to have paid parental leave.

Several state family leave laws provide models for expanding an employer’s policies in this area.  For example, at least one state family leave law provides leave to parents for their children’s non-serious health conditions.  The Oregon Family Leave Act allows a parent to use state family leave when a child under age eighteen (or a child eighteen or over who is mentally or physically incapable of self-care) has an illness or injury that requires home care.[169]  This type of leave is available to parents of children who are too sick to attend school or childcare, even if the parent is able to give little or no advance notice to the employer of the need for leave.

Also, some states provide job-protected leave for a parent to participate in a child’s school or childcare.  Minnesota is one of these states.  Under Minnesota law, an employee/parent may use up to sixteen hours of leave in a twelve-month period to attend school conferences or school-related activities related to his or her child, provided the conferences and activities cannot be scheduled during non-work hours.[170]

A bill to amend the FMLA has been introduced that would make school participation leave a requirement for all FMLA-covered employees.[171]  This bill and a similar bill introduced in the Senate would also amend the FMLA to reduce the number of employees required for an employer to be covered by FMLA from fifty employees in a seventy-five-mile radius to twenty-five, making many more employees eligible to use FMLA leave.[172]

The expansion of the FMLA to cover smaller employers will expand the application of the FMLA’s ethical framework to yet more human resource decisions.  It is also likely to expand the development of ethical habits by employers dealing with non-FMLA-covered issues, such as absences to care for sick children and to participate in a child’s school or childcare.

B.   The Policy of Respecting Employee Family Member Responsibilities Regardless of Marital Status

The FMLA does not protect employees who take time off from work to care for a significant other who is not a spouse, whether that significant other is that of the same or the opposite sex.  This is because the FMLA’s definition of “spouse” is limited to a husband or wife as defined under state law for the purpose of marriage in the state where the employee resides.[173]

Employers who have become accustomed under the FMLA to allowing an employee time off from work to care for his or her spouse will see the inequity of denying leave to another employee to care for his or her ill significant other simply because the employee is not married under state law.  Application of the ethical framework of the FMLA would mandate treating employees in these groups similarly in order to achieve consistency and fairness.

The definition of spouse under the FMLA is one concept that may not be possible to expand under current federal law.  Under the Defense of Marriage Act (hereinafter DOMA), for all federal laws and statutes, “marriage” is defined to mean only a union between a man and a woman, and the term “spouse” is defined only as a person of the opposite sex.[174]  However, despite DOMA, there is no restriction on an employer’s ability to address this inequity by adopting ethical human resource policies that provide family medical leave for married and unmarried couples including those of the same sex.

Some state family leave laws provide models for employer policies that do not discriminate based on the marital status of the employee.  For example, unlike the FMLA, the District of Columbia’s family medical leave statute provides for leave to care for a domestic partner.[175]  The District of Columbia law defines a family member as one who “shares, or has shared in the last year, a mutual residence with the worker and with whom the employee maintains a committed relationship.”[176]  Therefore, this law covers homosexual relationships as well as other non-marital intimate relationships.

The law in some other states is in a flux.  For example, the Oregon Court of Appeals recently held that the state statute prohibiting discrimination on the basis of gender precludes discrimination on the basis of a relationship with a same-sex partner.[177]  An unanswered question is whether Oregon’s gender discrimination law will be interpreted to require Oregon employers to provide family medical leave and other employment benefits to employees with same-sex partners or to unmarried heterosexual partners.

Application of the ethical framework provided by FMLA, particularly the components of fairness and consistency towards similarly situated groups of employees, would result in family leave policies that include leave to care for unmarried significant others.

C.   The Policy of Respecting Employee Obligations to Family Members Not Covered by FMLA

The FMLA does not protect an employee who needs time away from work to care for a family member who is not covered by FMLA.  For example, an employee may not use FMLA leave to care for a parent-in-law, sibling, grandparent, or grandchild.[178]  Occasionally, leave for some of these relatives will be covered by FMLA under in loco parentis rules as described in Section III, B, 5.[179]  Absent an “in loco parentis” relationship, close relatives may have serious health conditions and the employee may be needed to provide care.  However, an employee who must take time off from work to care for these relatives will not be protected by the FMLA.  Again, the ethical framework provided by the FMLA provides a basis for an employer’s leave policy to include family members not currently covered by the FMLA.  Considerations of fairness and consistent treatment call for providing leave for care for close family members not covered by the FMLA.

Some state family medical leave laws are more generous than the FMLA in defining family members for whom the employee may use family leave and provide a model for employer leave policies that balance employer and employee needs and equitable treatment of groups of employees.  For example, the Oregon Family Leave Act allows an employee to use family medical leave to care for a parent-in-law.[180]

Employers who have learned the ethical habits of family medical leave under the FMLA will find policies that limit leave to the FMLA’s narrowly-defined family member relationships do not pass the fairness test.  These employers will expand provision of family medical leave under their policies consistent with the ethical framework provided by the FMLA.

V.      Improvements Needed in the Federal Family Medical Leave Act to Further Promote Ethical Human Resource Decisions

A.   The FMLA or the FMLA Regulations Should be Amended to Remove Critical Disincentives to Employers to Provide More Generous Family Medical Leave Benefits

While the FMLA does not preclude employers or states from providing more generous family medical leave benefits to employees than provided by the FMLA, some provisions of the FMLA penalize employers who provide more generous benefits.[181]  These punitive features discourage employers from expanding their family leave policies consistent with the ethical framework of the FMLA and should therefore be eliminated.

1.   The Problem of Granting Earlier Leave to an Employee

A key disincentive to more generous employer or state leave benefits is the FMLA’s refusal to recognize leave granted to employees before they become eligible for FMLA leave as counting against the employees’ FMLA leave entitlements.[182]  It is logical to conclude that providing employees family medical leave earlier in their employment relationship than the FMLA would provide is the provision of a more generous leave benefit to employees.  For example, if an employee who has been employed for only six months is given twelve weeks of family medical leave to care for himself/herself or a family member, under the FMLA the leave is not considered FMLA leave.[183]  Therefore, when the employee reaches the twelve months of employment and 1250 hours worked  thresholds to be eligible for FMLA leave, the employee will be entitled to up to twelve weeks of FMLA leave without subtracting any leave already provided to the employee under a more generous employer policy or state family medical leave law.  This feature of the FMLA discourages employers from providing leave to employees before they qualify for FMLA leave because the employer may conceivably be required to provide more than twelve weeks of leave in a twelve-month period.

2.   The Problem of Granting Leave to an Employee for Additional Relatives or a Significant Other

Likewise, when an employer’s policy or a state family leave provision grants leave to an employee for a significant other or for relatives other than a spouse, son, daughter or parent, the leave is not FMLA leave.  The FMLA regulations give the example of a state family leave law that provides for six weeks of leave to care for a grandparent or a “spouse equivalent.”[184]  An employee who uses leave for one of these purposes will still be entitled to twelve weeks of FMLA leave because the state leave was not provided for a FMLA purpose.[185] This feature of the FMLA leads to inequitable leave situations.  An employer or a state family leave law cannot equalize these inequities by simply extending the scope of persons as family members, as demonstrated by the following example.

Take the situation of two employees who each use equivalent amounts of leave.  One employee uses leave for a FMLA-qualifying reason.  The other employee uses leave to care for an aunt, a reason that does not qualify for FMLA but does qualify under the employer’s policy.  The employee that uses leave for a FMLA-qualifying reason will have his or her twelve-week FMLA entitlement reduced.  The employee who uses leave for a reason that qualifies only under a state family medical leave law or only under an employer’s policy will not have his or her twelve-week FMLA entitlement reduced.  So the employer’s effort to treat similar situations the same–each employee, in fact, had a need to care for themselves or a significant other or family member–will result in inequitable treatment to employees.

These disincentives to employers frustrate the ethical purposes of FMLA.  It is not consistent with the ethical framework of the FMLA to prevent employers from providing leave time equitably to employees in situations not currently covered by family leave laws.  When an employer provides family leave to employees before they would qualify for FMLA leave or provides leave to care for relatives or significant others not currently covered by the FMLA, these ethical human resource policies should be encouraged by giving recognition to the employer’s policy as in compliance with the FMLA.  Removal of these punitive features of the FMLA could be accomplished by revising the FMLA regulations that implement the FMLA.

B.   The FMLA or the FMLA Regulations Should Be Amended to Remove Some Unnecessarily Punitive Employer Notice Requirements

1.   The Problem of the “Deemed Eligible” Employee

Under the FMLA administrative regulations, an employee is “deemed eligible” for FMLA leave if the employer fails to notify the employee whether he or she meets the eligibility requirements for FMLA and the employee begins a leave which would otherwise qualify for FMLA.[186]

This is inequitable because the employee is equally as likely as the employer to know whether he or she is eligible for FMLA leave.  The eligibility determination simply requires knowledge of whether the employee has been employed twelve months and has worked 1250 hours in the twelve months preceding the date the employee wants to begin a family medical leave.[187]  Therefore, the deemed eligible rule is an unnecessary technicality that will snare an employer who provisionally grants a leave while it checks the employee’s eligibility and awaits a requested medical certification.  If the employer fails to review the employee’s eligibility in a most expeditious manner, the employee will be eligible for FMLA by default. This result is hardly consistent with the ethical framework of the FMLA, which centers on balance between the needs of the employer and employee.

Some federal district courts have recognized the unfairness of the “deemed eligible” rule and have refused to enforce it on the rationale that the administrative regulation which created the rule contradicts the clear intention of Congress in passing the FMLA.[188]  In Wolke v. Dreadnought Marine, the court stated:

The Department of Labor regulation . . . purports to transform employees who are ineligible under the FMLA statute into eligible employees.  Under a literal application of the regulation, an employee could work for one day, then inform her employer that she is sick and is leaving.  If the employer fails to tell the employee she is ineligible for FMLA leave, the regulation at issue ostensibly would “deem her eligible,” even though she has worked for merely one day.[189]

Similarly, in Seaman v. Downtown Partnership of Baltimore, Inc.,[190] the court stated “[n]othing [in the FMLA] indicates that the agency [the Department of Labor] has the power to require employers to waive this eligibility requirement, which is essentially a rewriting of the statute.”[191]

The deemed eligible rule is a creation of an administrative regulation that serves no useful purpose.  It should be administratively corrected by revision of the administrative regulation that created it.  This would restore the FMLA to its original balance and improve its usefulness as an ethical decision-making model for human resource decisions involving work and family.

2.   The Problem of the Overly Technical Individual Notice Required Before Employers May Count an Employee’s Absence Against the Employee’s FMLA Entitlement

As discussed in Section III, the FMLA requires employers to notify employees of their rights in several situations.  For example, when an employer learns that an employee is absent from work on a leave that would be FMLA-qualifying, the employer must notify the employee that the employer is designating the leave as FMLA leave and counting the leave against the employee’s FMLA leave entitlement.[192]  The employer also has an obligation to notify the employee if any paid sick or vacation leave entitlement is being counted as part of the employee’s FMLA leave.[193]  The employer generally has two business days to provide these notifications to the employee.[194]  If the employer fails to provide these notifications in a timely fashion, the regulations provide that the employee’s leave is protected under the FMLA although the employee’s leave entitlement is not reduced.[195]  Generally, the employer may not make retroactive FMLA leave designations.[196]

The practical impact of the technical employer notice provisions is that employees may use additional FMLA leave time if employers fail to provide the required notices in a timely fashion.  For example, an employee notifies his or her employer that she will be having surgery and a lengthy recovery period.  The employee schedules the surgery and is away from work for twelve weeks.  The employer fails to advise the employee that the approved medical leave is being counted as FMLA leave.  Twelve weeks later the employee requests an additional four weeks of leave to care for a family member with a serious health condition.  This employee will have been provided twelve weeks of leave for her own serious health condition.  However, because the employer failed to notify the employee it was counting the leave as FMLA leave, the employee’s leave entitlement is not reduced and the employee still qualifies for twelve weeks of FMLA leave at the time of the second request.[197]  Additionally, even though the first twelve weeks of medical leave are not counted as FMLA leave, the employee is still entitled to receive the job protection rights of the FMLA for the first twelve weeks of leave including protection from discipline due to the absence and the right to reinstatement to her former job or an equivalent job.

Initially some courts held the employer’s failure to comply with notice requirements under the FMLA to be a violation of the FMLA that precluded the employer from counting the employee’s absence against his or her twelve-week FMLA entitlement.[198]  However, where an employer has failed to comply with the technical notice provisions of the FMLA but the employee has been provided the leave the law requires, some courts dismiss FMLA claims, finding there has been no substantive violation of the FMLA by the employer.[199]

Three U.S. Circuit Courts of Appeals rendered decisions to this effect.  In Sarno v. Douglas Eilliman-Gibbons & Ives, Inc.,[200] the Second Circuit Court of Appeals affirmed the dismissal of Sarno’s FMLA claim.  Sarno was notified by the employer that his leave was being counted as FMLA leave; however, he claimed he was not notified of the twelve-week limitation on FMLA leave.[201]  The Second Circuit held that Sarno enjoyed the full benefits of FMLA, namely remaining on unpaid leave and enjoying insurance coverage for twelve weeks, regardless of whether he had been properly informed of his FMLA rights and was not entitled to damages.[202]  The court stated that any lack of notice of the statutory twelve-week limitation on FMLA leave could not have impeded Sarno’s return to work as he was medically unable to return to work at the time his FMLA leave expired.[203]

In Covucci v. Service Merchandise Company,[204] the Sixth Circuit Court of Appeals held the employee was not denied any substantive rights guaranteed by the FMLA when he was fired one year after he began a medical leave and failed to provide medical certification as requested by the employer, even though his employer failed to inform him of his FMLA rights.[205]  The court held that although the employer may have committed technical violations of the FMLA by not informing the worker of his FMLA leave rights, he “simply was not denied any of the substantive rights promised by the FMLA.”[206]  The court commented that “[s]urely, Congress did not intend the FMLA to grant fifteen months of leave to an employee who provided medical excuses for only eight months of leave.”[207]  Covucci was decided on facts that were governed by the interim FMLA regulations.[208]  Because the employer notice requirements under the interim FMLA regulations were essentially the same as under the final FMLA regulations now in effect, there is no reason to believe the court’s holding would be different in a case involving similar facts but governed by the final regulations.[209]

In McGregor v. Autozone, Inc.,[210] the Eleventh Circuit also rejected an argument that the employer’s failure to designate an employee’s leave as FMLA entitled the plaintiff to more than twelve weeks of protected leave under the FMLA.[211]  In this case, employee McGregor contended she was entitled to thirteen weeks of employer-provided paid disability leave followed by twelve weeks of unpaid FMLA leave because her employer failed to notify her, as required by the FMLA regulations, that her paid disability leave would also be considered FMLA leave.[212]  McGregor was absent for fifteen weeks, three weeks in excess of the twelve-week FMLA entitlement.[213]  She argued she was entitled to be restored to her prior or an equivalent position under FMLA when she returned to work after a fifteen-week absence.[214]

In McGregor, the Eleventh Circuit compared 29 C.F.R. Section 825.208(a), the FMLA regulation that requires employers to notify the employee that the absence is being counted as FMLA leave before the employer may count the leave against the twelve-week entitlement, with 29 C.F.R. Section 825.207(d)(1), “another [FMLA] regulation that appears to create a presumption that paid disability leave for the birth of a child runs concurrently with unpaid FMLA-guaranteed leave.”[215]  The Eleventh Circuit found these two regulations in apparent conflict.[216]  Concluding that the FMLA statute does not suggest the twelve-week FMLA entitlement may be extended and that the regulations add requirements and grant entitlements beyond those of the statute and are inconsistent with the stated purpose of the statute, the court stated:

One of the explicit purposes of the Act is to “balance the demands of the workplace with the needs of families . . . in a manner that accommodates the legitimate interests of employers.”  “Nothing in this Act . . .  shall be construed to discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this Act”.  Where an employer such as defendant exceeds the baseline 12 weeks by providing not only more leave than FMLA but also paid leave, the employer should not find itself sued for violating FMLA.[217]

After expressly recognizing the balance between employer and employee needs as a central purpose of the FMLA, and consistent with the ethical balancing that is a central thesis of this paper, the Eleventh Circuit held the FMLA regulation purporting to extend the FMLA leave period for a technical notice violation was manifestly contrary to the statute invalid and unenforceable.[218]

A federal district court decision, Donnellan v. New York City Transit Authority, arising out of the Second Circuit and rendered after the three circuit court of appeals decisions, supports the view that some employer notice violations will likely be found to interfere with the employee’s exercise of FMLA rights and will not be viewed as mere technical violations.[219]  Although Donnellan held there was no interference with the plaintiff’s FMLA rights due to the technical notice violation that occurred in this case, the court distinguished a number of situations where a notice violation could be found to interfere with an employee’s substantive rights:

A different case would be presented if plaintiff’s need for medical needed leave was anticipated or if plaintiff needed leave to care for a family member, rather than because of her own medical condition that rendered her unable to perform her job functions.  Anticipated medical leave can potentially be scheduled to coincide with work holidays or other periods of time which would not have to be counted as time away from work, thus reducing the amount of FMLA leave that the employee is required to expend.  Leave taken to care for a family member may, even if the need for leave is unanticipated, also be differently managed based upon proper notice of designation because the employee may be able to arrange for other people to provide care to the relative.  Finally, where the employee can or does take less than the full twelve-week leave allotment, failure to timely designate and notify the employee could interfere with her management of potential future leave by causing her to unwittingly use more time than is necessary for the present leave, or to exceed her twelve-week allotment either with the present leave or by using more than the balance left during some future leave.[220]

The courts should continue to hold that mere technical violations of the FMLA notice provisions do not entitle an employee who has received all that he or she is entitled to receive under the FMLA to additional leave and benefits or damages.  However, where the employer fails to meet a notice obligation and that failure is shown to have interfered with the employee’s exercise of his or her FMLA rights, the courts should continue to view these types of notice violations as substantive violations.  To find a FMLA violation where there has been a substantive notice violation is consistent with the legislative intent of the FMLA to provide a minimum unpaid protected leave to employees for family medical leave protected reasons.  This interpretation is also consistent with the ethical framework provided by the FMLA because it balances employer and employee needs and promotes fair and consistent treatment among groups of employees.

VI.      Conclusion

From an ethical standpoint, the FMLA is a wondrous tool.  It provides an ethical framework for employers to use to make human resource decisions involving leave for family purposes.  That framework is ethically sound because it reflects two key attributes: recognition that both employers and employees have important and legitimate needs that must be balanced and promotion of consistent and fair treatment of groups of employees.

Employers apply the ethical framework of the FMLA when they engage in efforts to comply with the law.  In so doing, employers practice some important ethical habits that include the following: providing job security to employees on FMLA leave, helping employees adjust to new responsibilities when a new child joins the family, accommodating employees who are temporarily disabled from working, and exercising flexibility with regard to employees’ work schedules and attendance policies.

The employer in situations not currently covered by the FMLA, where compliance is not a legal obligation but rather a matter of ethical business practices, may apply these ethical human resource habits.  Extension of the framework found in the FMLA to other human resource decisions would result in policies to allow employees to meet important child rearing responsibilities involving care of sick children not covered by the FMLA’s serious heath condition definition.  The FMLA framework also provides a model to address leave for employees to participate in their children’s school activities.  Extension of this ethical framework would also provide ethical solutions to family care issues of employees with significant others who need the employee’s care but do not currently fit within the FMLA’s definition of spouse.  Finally, extension of the ethical framework of the FMLA would lead to ethical treatment of employees who are needed to care for family members not currently covered by the FMLA, including grandparents or grandchildren.

There are some improvements to the FMLA that are needed to make the FMLA a more effective model to further ethical human resource policies.  Critical disincentives in the FMLA should be removed because they discourage employers from providing more generous leave benefits than required by the FMLA.  Additionally, some unnecessarily punitive features of the FMLA’s notice provisions found in the FMLA regulations should be removed.  To do so would restore the FMLA to its original balance as reflected in the statute and improve its usefulness as an ethical decision-making model for human resource decisions involving work and family.

Most of us would agree that an ethical framework for human resource decisions must promote fair and consistent treatment of similarly situated groups of employees.  The FMLA encourages this.  But we should not overlook the importance of balance between the interests of employers and employees when seeking a workable ethical framework for human resource decisions.  The importance of this balance is colorfully explained in David Whyte’s, The Heart Aroused; Poetry and the Preservation of the Soul in Corporate America:

Corporate ethics often seem to swing between two extremes, on the one hand outright ruthless avarice, and on the other a reliance on bland and bloodless middle-class ethics.  The first one usually issues from the boardroom, the second from the Human Resources Department.  One says the spear [literary symbol for the ultimate human resource management weapon, employee termination] is to be used all the time or someone at some time will use it on you, while you are not looking; the other denies its existence altogether and says we have only to work together and everything will be all right.[221]

Whyte concludes that “[e]ven the kindest managers face the telling moment when they must terminate the employment of an inefficient but otherwise likeable employee.”[222]

The ethical framework for decision-making provided by the FMLA avoids either of the extremes so vividly described by Whyte.  The FMLA neither advocates ruthless avarice by employers nor adopts a bland, one-sided view of human resource management that would ignore the real and important needs of employers to remain productive and competitive.  It simultaneously recognizes the important needs of employees to care for themselves and their family members, on a temporary basis, enabling employees to put their families first without jeopardizing their jobs.  In the FMLA, as with so many other ethical challenges, the ethical solution is balance.

 



       *  Visiting Professor of Law, Willamette University College of Law, Salem, Oregon (1999-2000) and Shareholder, Bullard, Korshoj, Smith, & Jernstedt, P.C., Portland, Oregon, 1996-Present.

        1.  See 29 U.S.C. 2601 (1999).

        2. State family medical leave laws that in some cases provide more generous family leave rights compliment the FMLA.  This article will focus on the FMLA and will primarily refer to the FMLA.  However, where the general term family medical leave laws is used in this article, it is meant to include the FMLA and analogous state family medical leave laws.

        3.  See 29 U.S.C. 2601.

        4. See 29 U.S.C. 2601(b) (1999). The FMLA was enacted to “balance the demands of the workplace with the needs of families, . . . to entitle employees to take reasonable leave for medical reasons . . . in a way that accommodates the legitimate interests of employers.”  See id.  See also 29 C.F.R. 825.101 (1999) which states:

The Act is intended to balance the demands of the workplace with the needs of families . . . . FMLA was predicated on two fundamental concerns-the needs of the American workforce, and the development of high-performance organizations.  Increasingly, America’s children and elderly are dependent upon family members who must spend long hours at work.  When a family emergency arises, requiring workers to attend to seriously-ill children or parents, or to newly-born or adopted infants, or even to their own serious illness, workers need reassurance that they will not be asked to choose between continuing their employment and meeting their personal and family obligations or tending to vital needs at home . . . .  The FMLA is both intended and expected to benefit employers as well as their employees.  A direct correlation exists between stability in the family and productivity in the workplace.

See id.

        5.  See generally W.T. Jones Et Al., Approaches to Ethics 54, 61-62 (3d ed. 1977) (The Greek word for moral virtue is ethike, a word formed by a slight variation from the word ethos, meaning habit.  Aristotle taught that moral virtue is the result of habit.  Individuals become just by doing just acts, temperate by doing temperate acts, etc.  Although the idea that ethics consists of cultivating appropriate virtues is derived from Aristotle, current writers such as William Bennett continue to endorse this theoretical view of ethics.  See also William J. Bennett, The Book of Virtues 101 (1996 ed.) (“We are the sum of our actions, Aristotle tells us . . . [m]oral virtue . . . comes with practice . . . .”).

        6.  See Jones, supra note 5, at 62.

        7. Francis Fukuyama, Trust, the Social Virtue and Creation of Prosperity 35, 41 (1995).

        8.  Thomas Kohler and Matthew Finkin, Bonding and Flexibility: Employment Ordering in a Relationless Age, 46 Am. J. Comp. L. 379, 381 (1998) [hereinafter Kohler and Finkin].

        9. See George Anastaplo, The American Moralist on Law, Ethics, and Government 20-21 (1992).

        10.  See id.

        11.  See Anastaplo, supra note 9.  The author states:

The dependence of morality on law is insisted upon in the closing pages of Aristotle’s Nicomachean Ethics . . . .  This is true in the United States as well . . . .  Yet the typical opinions in a contemporary liberal democracy are likely to be (1) that morality cannot be legislated; and (2) that even if morality could be legislated, it should not be . . . Although intellectuals of liberal democratic sympathies may not believe that morality depends on law, it is almost impossible for any . . . [government] . . . not to shape its citizens with respect to morality.  To deny that legislation of morality can or should take place does not eliminate such legislation; it merely conceals it, perhaps distorts it . . . .  When we see what law can mean, and how it works, we may better appreciate what the law does in the service of morality, even in such a liberal democracy as ours.

See id.

12.       See Lon L. Fuller, The Morality of Law 5, 6 (rev. ed. 1969) [hereinafter Fuller].

[T]he morality of duty starts at the bottom.  It lays down the basic rules without which an ordered society is impossible, or without which an ordered society directed toward certain specific goals must fail of its mark.  It is the morality of the Old Testament and the Ten Commandments . . . .  It does not condemn men for failing to embrace opportunities for the fullest realization of their powers.  Instead, it condemns them for failing to respect the basic requirements of social living.

See id.

        13.  See id. at 5.

        14.  See id. 

The morality of aspiration is most plainly exemplified in Greek philosophy.  It is the morality of the Good Life, of excellence, of the fullest realization of human powers.  In a morality of aspiration there may be overtones of a notion approaching that of duty.  But these overtones are usually muted, as they are in Plato and Aristotle.  Those thinkers recognized, of course, that a man might fail to realize his fullest capabilities . . . .  But in such a case he was condemned for failure, not for being recreant to duty; for shortcoming, not for wrongdoing.  Generally with the Greeks instead of ideas of right and wrong, of moral claim and moral duty, we have rather the conception of proper and fitting conduct.

See id.

        15.  See id.

        16.  See id.

        17. Exec. Order No. 11,246, 3 C.F.R. 339, as amended in 41 C.F.R. 60-1 (1998) [hereinafter EO 11246] is an example of a law that has an aspirational purpose along with creating legal duties for employers.  EO 11246 establishes the affirmative action obligations of employers who are federal contractors, which include the obligation to create a written affirmative action plan if the contractor has been awarded $50,000 or more in federal contracts.  See id.  This written affirmative action plan is required to set goals and timetables, which the employer or federal contractor aspires to meet.  See id.  However, failure to meet the goals and timetables set in the affirmative action plan is not itself the basis for determining an employer or federal contractor has violated its obligations under EO 11246.  See id.  Rather, the employer or federal contractor would violate EO 11246 if it failed to make good-faith efforts to achieve the goals and timetables set out in its affirmative action plan but not if the employer or federal contractor chose the best-qualified candidate for a position and in so doing rejected a minority or female candidate resulting in under-utilization of minorities or women in a particular area of employment.  See Robert S. Whiteman, Affirmative Action on Campus: The Legal and Practical Challenges, 24 J.C. & U.L. 637, 650-51 (1998).

        18.  See Timothy L. Fort, Religion in the Workplace: Mediating Religion’s Good, Bad and Ugly Naturally, Symposium on Legal Issues in the Workplace, 12 Notre Dame J.L. Ethics & Pub. Pol’y. l21, 123 (1998).  The author discusses the relationship between the call for businesses to be more ethical and congressional efforts to legislate ethical behavior.  See id. at 126-27.  This article argues that religious beliefs should not be excluded from the business ethics debate, policies, or theories because sincerely held religious beliefs that address the propriety of business practices are worthwhile and worthy of respect as any other normative belief.  See id.  However, because of the legitimate concern for imposition of religious beliefs on others, a requirement of a secular, corollary justification for a religious belief is appropriate for any proposed religiously based business ethic.  See id.

        19.  Id. at 123.

        20.  Id. at 123 & n.4.  At least 20 states have adopted corporate constituency statutes. 

        21.  See Jane Rigler, Analysis and Understanding of the Family and Medical Leave Act of 1993, 45 Case W. Res. L. Rev. 457, 460 (1995) (including a summary of the legislative history related to the FMLA).

        22.   See id. at 459-60.

        23.   Id. at 460.

        24.   Id.

        25.   See id.

[26]. See Ethics Resource Center, Visioning Paper, Visioning the Future of Business Ethics: Infinite in All Directions, http://www.ethics.org/fellows/vpaper.html (visited June 1, 1999) .

[27]. See id.

[28]. Id. at 4.

[29]. Id.

[30]. See id.

[31]. Id.

[32]. See Society for Human Resource Management/Ethics Resource Center, Business Ethics Survey Report, based on the 1997 SHRM/Ethics Resource Center Business Ethics Survey, available from SHRM, 1800 Duke Street, Alexandria, Virginia 22314-3499.

[33]. Id. at 41.

[34]. Lin Grensing-Pophal, Walking the Tightrope, Balancing Risks and Gains, HR Magazine, Oct. 1998, at 119.

[35]. See 29 U.S.C. 2612(a)(1) (1994); 29 C.F.R. 825.100(a) (1999); 29 C.F.R.   825.114-116 (1999).

[36]. See id.

[37]. See id.

[38]. See generally 29 U.S.C. 2612 (1999); 29 C.F.R. 825.114 (1999).

[39]. See id.

[40]. Id.  This leave calculation year may be a calendar year.  However, the FMLA allows the employer to choose any of four methods to establish the leave calculation year.  See 29 C.F.R. 825.200(b)-(c) (1999).  The other three methods can be characterized as leave year rolling forward from first use of family medical leave, leave year rolling backward from last use of family medical leave, or any other fixed 12-month period, such as 12 months from the employee’s anniversary or hire date.  See id.  Generally, employers must apply the chosen leave calculation method on a consistent basis to all employees.  See 29 C.F.R. 825.200(d)(1) & (d)(2) (1999).

[41]. See 29 U.S.C. 2611(2)(a) (1994); 29 C.F.R. 825.100 (1999).

[42]. See 29 U.S.C. 2611(4) (1999); 29 C.F.R. 825.104-05 (1999).

[43]. See 29 U.S.C. 2614(a)(1)(A)-(B) (1994).

[44]. See id.; see also 29 C.F.R. 825.100(c) (1999); 29 C.F.R. 825.214-.215 (1999).

[45]. See also 29 U.S.C. 2615(a) (1999); 29 C.F.R. 825.220(c) (1999).  “[E]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under ‘no fault’ attendance policies.”  See 29 C.F.R. 825.220(c) (1999).

[46]. See 29 C.F.R. 825.208(c) (1999); 29 C.F.R. 825.220(c).

[47]. See 29 C.F.R. 825.215(c)(2)-(e)(3) (1999); Family & Medical Leave Act Opinion Letters, U.S. Department of Labor, FMLA-2 (Aug, 16, 1993), FMLA-56 (March 28, 1995), FMLA-79 (Feb. 23, 1996), reported at Lab. Rel. Rep. (BNA) (Wage & Hour Manual) 99:3001, 99:3054, 99:3082.

[48]. See 29 U.S.C. 2615(a)(1) (1999); 29 C.F.R. 825.220(a) (1999).

[49]. See 29 U.S.C. 2612(c) (1999); 29 C.F.R. 825.207 (1999).

[50]. See 29 U.S.C. 2614(c) (1999); 29 C.F.R. 825.100(b) (1999); 29 C.F.R. 825.209 (1999).

[51]. See 29 U.S.C. 2612(d)(1)-(2) (1999).

[52]. See 29 U.S.C. 2601-2654.

[53]. See Donna Lenhoff & Claudia Withers, Implementation of the Family and Medical Leave Act: Toward the Family Friendly Workplace, 3 Am. U.J. Gender L. 39 (1994).  The appendix includes Women’s Legal Defense Fund’s History of the Legislative Development of the Family and Medical Leave Act.  See id.

[54]. See id.

[55]. See id.

[56]. See id.

[57]. See Fuller, supra note 12, at 96, 145, 184-86.  Law is not simply the result of the exercise of social authority or power, to be studied for what it is and does and not for what it is trying to do or become.  See id.  Fuller advocates that there are ethical principles that are inherent in the process of making laws.  See id.  Laws have both external and internal morality. See id.  The question of whether a subject should be an object of legislation relates to the external morality of law.  See id.  However, there are also ethical principles that relate to the process of enacting laws.  See id.  Fuller describes this process as the “enterprise of subjecting human conduct to the governance of rules.”  Id. at 96.  Fuller argues that there is an internal morality of law that relates to this process.  See id.  According to Fuller, the one central indisputable ethical principle applicable to the enterprise of subjecting human conduct to the governance of rules is communication with our fellow citizens.  See id.  The degree of communication in the legislative process between the legislators and those to be regulated is therefore a measure of the ethical nature of the law enacted.  See id.

[58]. See id.

[59]. See Lenhoff & Withers, supra note 53.

[60]. See supra Part II C.

[61]. See 29 U.S.C. 2601(b) (1994).

[62]. See id. at 2601(b)(3).

[63]. See id. at 2601(b)(4).

[64]. See 2601.

[65]. See Howard M. Pardue, Ethics: A Human Resource Perspective, Society for Human Resource Management White Paper (Dec. 1998) available from SHRM.  See supra note 32, for address.  (“Ethics primarily concerns the interrelationships that exist between individuals.  Most often ethics is defined as ‘honesty’, ‘integrity’, or ‘fairness’.  Proper ethical conduct involves the application of these values.  Senior Management, [Human Resources] Executives, and employees in all organizations must consider the ethics of all of their decisions and actions.”)

        The FMLA regulations also recognize that a purpose of the FMLA was to promote fair and equal treatment between groups of employees.  See 29 C.F.R. 825.101(a) (1999).  In discussing the purpose of the FMLA, the regulations state the FMLA intended to accomplish its purposes while minimizing the potential for sex discrimination, promoting equal opportunity between men and women, and promoting equal protection.  See id.

[66]. See 29 U.S.C. 2614(a)(1)(A)-(B).

[67]. Without a contract, general hiring is at-will and can be terminated by either party at any time.  See Gail Heriot, The New Feudalism: The Unintended Destination of Contemporary Trends in Employment Law, 28 Ga. L. Rev. 167, 191-97 and 202-03 (1993) (discussing cases and articles that explain and criticize employment at-will and the erosion of employee privacy that may result from departures from at-will employment.)  The author comments that mandated benefits, such as family medical leave, may encourage employers to take a greater interest in employees’ private lives and may lead to declines in employee privacy.  See id. 

[68]. See Lenhoff & Withers, supra note 53.

[69]. 42 U.S.C. 12111(9)-(10) (1999) (defining concepts of reasonable accommodation and undue hardship); 29 C.F.R. 1630.2(o)-(p) (1999); 29 C.F.R. 1630, app 1630.2(o)-(p) (1999).

[70]. See 29 C.F.R. 825.214(a) (1999).

[71]. See 29 C.F.R. 825.200(a) (1999).

[72]. 29 C.F.R. 825.312(d) (1999).  But some state laws may provide greater protection to an employee on state family medical leave than FMLA leave.  For example, under Oregon law, even in a bona fide job elimination situation, the employee may be entitled to continue on family medical leave and to reinstatement to an available equivalent job at the conclusion of such leave.  See Or. Admin. R. 839-009-0270(2) (1998) (stating that under Oregon family leave, if the position held by the employee at the time family leave started has in fact been eliminated the employer must restore the employee to any available equivalent position).

[73]. See 29 C.F.R. 825.312(d), 825.216(a) (1999).

[74]. See C.F.R. 825.200(b)-(c).

[75]. See generally 29 C.F.R. 825.220 (1999).

[76]. See 29 C.F.R. 825.220(b) (1999).

[77]. See 29 C.F.R. 825.215(e)(2) (1999).

[78]. See 29 C.F.R. 825.216(a).

[79]. See 29 C.F.R. 825.201 (1999).

[80]. See 29 C.F.R. 825.202(a)(1999).

[81]. See 29 C.F.R. 825.202(c).

[82]. See 29 C.F.R. 825.202(a) (1999).

[83]. See comments to 825.202 (Limitation for Spouses Employed by the Same Employer) accompanying Final Rule, 60 Fed. Reg. 2180, 2201 (Jan. 6, 1995) amended by 60 Fed. Reg. 6658 (Feb. 3, 1995) and 60 Fed. Reg. 16382 (Mar. 30, 1995).

[84]. See 29 C.F.R. 825.202(c).

[85]. See id.

[86]. Many state family leave laws are more generous to the female employee who is disabled by pregnancy.  Cal. Gov’t. Code  12945(b)(2) (West 1999) (providing a maximum of four months of leave for pregnancy disability which is in addition to 12 weeks of state family leave); Wash. Admin. Code 162-30-020 and Wash. Rev. Code 49.78.005(2) (1999) (providing a reasonable pregnancy disability leave, length unspecified, which is in addition to the leave provided by the FMLA); Or. Rev. Stat. 659.478(2)(a) (1997) (providing an additional 12 weeks of pregnancy disability to a female employee).  Some states do not require spouses who work for the same employer to share the maximum leave time available for birth, adoption, or foster placement, but rather allow each employee a separate leave entitlement.  See, e.g., Ore. Rev. Stat. 659.478(1), (3) (1997).  Oregon provides each parent with 12 weeks of family leave that may be used for birth, adoption of foster care or for any other family leave purpose.  See id.  Parents who work for the same employer are limited in their ability to take concurrent leave.  See id.  However, Oregon does not limit the parents who work for the same employer to a combined limit of 12 weeks of leave for birth, adoption or foster care.  See id.

[87]. See 29 C.F.R. 825.200(a)(2) (1999).

[88]. See 29 C.F.R. 825.201 (1999).

[89]. See 29 C.F.R. 825.112(d) (1995).

[90]. For a foster placement to be a covered use of leave under FMLA, state action in removing the child from parental custody must be involved.  See 29 C.F.R. 825.112(e) (1999).

[91]. See Infertility and Adoption:  How the Family and Medical Leave Act Can Help, National Partnership for Women and Families, <http://www.nationpartnership.org/publication> (visited June 2, 1999).

[92]. See 29 C.F.R. 825.116.

[93]. See id.

[94]. See Kohler & Finkin, supra note 8 at 396 (“Who is employed?–and the answer is: nearly everyone.  The United States has the highest labor force participation rate among the leading industrialized nations, and one of the highest rates of participation among women . . . .  As of 1991, seventy-four percent of women twenty-five to fifty-four were employed, the overwhelming proportion of them full-time . . . . Presently, sixty-two percent of women with pre-school aged children are workforce participants.”).

[95]. See Work Trends Survey, Americans’ Attitudes About Work, Employers and Government, 2, 4-6 (Winter 1999) a joint project of John J. Heldrich Center for Workforce Development at Rutgers University and The Center for Survey Research and Analysis at the University of Connecticut.  This survey revealed:

Most American workers (92%) are concerned with having the flexibility in their schedules to take care of family needs such as caring for a sick child or parent . . . .  While Americans may be satisfied with their job, they are having difficulty balancing their work and family life . . . . The most important factor for Americans in their jobs is the ability to balance work and family.  This factor rated as very or extremely important by 88% of all members of the workforce and as extremely important by 37% . . . . Despite the fact that most Americans think balancing work and family is very important, few workers achieve this balance.  Almost all workers (95%) are concerned about spending time with their immediate family with 41% being extremely concerned and another 41% being very concerned . . . . Almost all (92%) workers are concerned with having the flexibility in their work schedule to care [for] family needs, with 38% of workers being extremely concerned and 37% being very concerned.

See id.

[96]. See 29 C.F.R. 825.116(a) (1999) which states:

The medical certification provision that an employee is “needed to care for” a family member encompasses both physical and psychological care.  It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc.  The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

See id.

[97]. See 29 C.F.R. 825.112(a)(3) (1995).

[98]. 29 C.F.R. 825.112(a)(3).

[99]. See 29 C.F.R. 825.113(c) (1999).

[100]. See id.

[101]. See 29 C.F.R. 825.113(c)(3) (1999).

[102]. See 29 C.F.R. 825.305.

[103]. See 29 C.F.R. 825.305-.306 (1999) (providing that an employer may require a second and/or third medical opinion when it questions the adequacy of the medical certification provided by the employee and may require the employee to provide subsequent recertification, which is in the nature of an update of the employee’s or family member’s medical condition, from the employee’s or family member’s health care provider).

[104]. See generally Bryant v. Delbar Products, Inc., 18 F. Supp. 2d 799, 803-04 (M.D. Tenn. 1998) (holding that an employee was entitled to use FMLA leave to care for her adult child who had advanced kidney failure; the son’s inability to perform three or more activities of daily living-he could not cook, clean, shop for himself, or provide his own transportation-was sufficient to show he was incapable of self-care, even though he was able to feed, bathe himself, and take his own medications).

[105]. See id. at 799.

[106]. See id.

[107]. See 29 C.F.R. 825.203(a), (c) (1999).

[108]. See id.

[109]. See 29 C.F.R. 825.203(c).

[110]. See id.

[111]. See 29 C.F.R. 825.205 (1999).

[112]. See id.

[113]. See id.

[114]. See 29 C.F.R. 825.203(c) (1999).

[115]. See id.

[116]. The FMLA regulations partially ameliorate these concerns by prohibiting use of intermittent or reduced schedule leave for birth, adoption, or foster-placement situations unless the employer agrees to such use.  See 29 C.F.R. 825.203(b) (1999).  In limited situations, the regulations also allow an employer to transfer an employee to an alternative position to better accommodate intermittent leave or a reduced schedule.  See 29 C.F.R. 825.204 (1999).

[117]. See 29 C.F.R. 825.303 (1999).

[118]. See 29 id.

[119]. See id.

[120]. See id.

[121]. See 29 C.F.R. 825.303 (1999) (stating that the employee may be entitled to even a longer time to notify the employer in extraordinary circumstances when notice within one to two business days is not feasible).

[122]. See 29 C.F.R. 825.305 (1999).

[123]. See 29 C.F.R. 825.305 (1999).

[124]. See 29 C.F.R. 825.308(b)(2) (1999).

[125]. See id.

[126]. See id.

[127]. The FMLA’s limits on the employer’s ability to independently verify the reasons for an employee’s absence in intermittent or reduced-schedule leave situations may have the beneficial effect of encouraging trust between employers and employees.  See Carlton J. Snow, Building Trust in the Workplace, 14 Hofstra Lab L.J. 465, 480-81 (1997) (discussing the role of ethical codes in enhancing trust in a collective bargaining relationship; concluding that a relationship of trust best serves the parties’ interests in collective bargaining).

[128]. See 29 C.F.R. 825.307 (1999).

[129]. See Work Trends Survey,  Americans’ Attitudes About Work, Employers and Government, supra note 95.

[130]. See 42 U.S.C. 1211(9)-(10) (1999) (stating that undue hardship is a limitation on the employer’s obligation to reasonably accommodate an employee’s disability).

[131]. See 29 C.F.R. 2601.

[132]. See 29 U.S.C. 2612(b)(1) (1994).

[133]. See 29 C.F.R. 825.300 (1999).  See generally 29 C.F.R. 825.301(a)(2) (1999).

[134]. See 29 C.F.R. 825.301(a) (1999).

[135]. See 29 C.F.R. 825.301 (1999).

[136]. See id.

[137]. See 29 C.F.R. 825.301(b)(1), 825.208 (b)(1) (1999).

[138]. See id.

[139]. See 29 C.F.R. 825.301(f) (1999) (requiring that if an employer fails to provide notice in accordance with the provisions of this section, the employer may not take any action against an employee for failure to comply with any provision required to be set forth in the notice.).

[140]. See 29 C.F.R. 825.301(a)-(c).

[141]. See 29 C.F.R. 825.301(b)(1)(ii), (v)(f) (1999).

[142]. See 29 C.F.R. 825.301(b)(1)(iii) (1999).

[143]. See 29 C.F.R. 825.208(e) (1999).

[144]. See 29 C.F.R. 825.306(b) (1999).  An optional form has been provided for employers to use to obtain medical certification about employees using FMLA leave. See id. However, an employer may require no additional information related to employees’ use of FMLA leave.  See id.

[145]. See 29 C.F.R. 825.306(b).

[146]. See generally 29 C.F.R. 825.306.

[147]. See id.; see also 825.100, app. B, Form WH 380 (1994).

[148]. See 29 C.F.R. 825.310 (1999).

[149]. See 29 C.F.R. 825.310(c) (1999).

[150]. See id.

[151]. See 29 C.F.R. 825.310(a) (1999).

[152]. See 29 C.F.R. 825.310(b), (c) (1999).

[153]. See 29 C.F.R. 825.310(c).

[154]. See 29 C.F.R. 825.310(e) (1999).

[155]. See 29 C.F.R. 825.702, 1630.14(c)(1) (1999).

[156]. See 29 C.F.R. 825.500(g) (1999).

[157]. See id.

[158]. See 29 C.F.R. 825.220(c) (1999).

[159]. See 29 C.F.R. 825.220(c).

[160]. See id.

[161]. See 29 C.F.R. 825.208(c) (1999) (stating that “[i]f the employer has the requisite knowledge to make a determination that the paid leave is for an FMLA [protected] reason at the time the employee either gives notice of the need for leave or commences leave and [the employer] fails to designate the leave as FMLA leave . . . the employee is subject to the full protections of the Act.”).

[162]. See 29 C.F.R. 825.220(c).

[163]. See 29 C.F.R. 825.114(a), (c) (1999).

[164]. See 29 C.F.R. 825.114(a)(2)(i), (c) (1999).

[165]. See generally 29 C.F.R. 825.112.

[166]. See 29 C.F.R. 825.207(c) (1999).

[167]. See generally Memorandum For the Heads of Executive Departments and Agencies, The White House, Office of the President, May 24, 1999.

[168]. See id.  On July 13, 1999, Senator Chris Dodd (D-CT) and Congresswoman Lynn Woolsey (D-CA) held a press conference on the introduction of the Family Income to Respond to Significant Transactions Insurance Act (FIRST) that would provide seed money for states to start family leave income programs. See (visited August 26, 1999) <http://www.nationalpartnership.org >.

[169]. See Or. Rev. Stat. 659.476(1)(d) (1997); Or. Admin. R. 839-009-0210(6) (1999).

[170]. See Minn. Stat. 181.9412 (1997).  Parents may also use this type of leave to attend conferences or participate in school-related activities related to a child who receives child care services or attends a pre-kindergarten regular or special education program.  See id.

[171]. See H.R. 91, 106th Cong. 1 (1999).

[172]. See id.; see also S. 201, 106th Cong. 1 (1999). Only 57% of the private workforce is currently protected by FMLA.  See id.  An additional 14% of the private workforce would be protected if the FMLA is expanded to cover private employers with 25 or more employees.  See id.

[173]. See 29 C.F.R. 825.113(a) (1999). The definition includes a spouse by common law marriage in the state where the employee resides.  See id.

[174].  See Pat P. Putignano, A Review of Recent Federal Hostility to Expand Employment Rights and Protection Beyond Traditional Notions, Why DOMA and Not ENDA?, 15 Hofstra Lab. L.J. 177, 179-80 (1997).

[175]. See D.C. Code Ann. 36-1302(4) (1998); see also D.C. Code Ann. 36-1301(4)(C) (1998).

[176]. See D.C. Code Ann. 36-1302(4) (1998).

[177]. See Tanner v. OHSU, 157 Or. App. 502, 506, 971 P.2d 435, 437 (1998).  The  court stated that Ore. Rev. Stat. 659.030(1)(b) prohibits discrimination on the basis of the

“sex  . . . of any other person with whom an individual associates” . . . .  Plaintiffs allege that [their employer] discriminated against them by denying them the option of providing their domestic partners insurance benefits because their domestic partners are of the same sex.  Discrimination of that sort hinges on the sex of the individual with whom plaintiffs associate.  It plainly falls within the wording of the statute.

Id. (citation omitted).  However, the court found a separate statute provided that it was not “an unlawful employment practice for an employer . . . to observe the terms of a . . . bona fide employee benefit plan . . . which is not a subterfuge to evade the purposes of [the state’s discrimination statutes]” and that in this case there was no subterfuge by the employer.  Id. at 443.  Therefore, the court held denial of insurance benefits to unmarried domestic partner homosexual employees was not a statutory unlawful employment practice. See id. at 447-48.  However, the court went on to hold that such a denial by a state entity violated privileges and immunities under the state constitution.  See id. at 442-43.

[178]. See 29 C.F.R. 825.113 (1999).  FMLA leave for the serious health condition of a family member is limited to those defined as spouse, parent, son, and daughter.  See id.

[179]. See  29 C.F.R. 825.113(c)(3).

[180]. See Or. Rev. Stat. 659.470(4); Or. Admin. R. 839-009-0210(4) (1998).

[181]. See 29 C.F.R. 825.700(b) (1999).  The statute states that “[n]othing  in this Act prevents an employer from amending existing leave and employee benefit programs, provided they comply with FMLA.  However, nothing in the Act is intended to discourage employers from adopting or retaining more generous leave policies.”  See id.  See also 29 C.F.R. 825.701(a) (1999) which states that “[n]othing in FMLA supersedes any provision of State or local law that provides greater family or medical leave rights than those provided by FMLA.”

[182]. See 29 C.F.R. 825.701 (1999).

[183]. See 29 C.F.R. 825.701(a)(5) (1999).

[184]. Id.

[185]. See id.

[186]. 29 C.F.R. 825.110(d) (1999).  The statute contains the following language:

If the employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible.  The employer may not, then, deny the leave.  Where the employee does not give notice of the need for leave more than two business days prior to commencing leave, the employee will be deemed to be eligible if the employer fails to advise the employee that the employee is not eligible within two business days of receiving the employee’s notice.

See id.

[187]. See 29 C.F.R. 824.110.

[188]. See Wolke v. Dreadnought Marine, Inc., 954 F. Supp. 1133 (E.D. Va. 1997).

[189]. Id. at 1137.

[190]. 991 F. Supp. 751 (D. Md. 1998).

[191]. Id. at 754 (holding the deemed eligible rule was invalid, the court applied traditional tools of statutory construction to determine Congress’ intent).

[192]. See 29 C.F.R. 825.208(a) (1999) (“In all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section.”); 29 C.F.R. 825.208(b)(1) (1999) (“Once the employer has acquired knowledge that the leave is being taken for an FMLA required reason, the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave.”).

[193]. See 29 C.R.R. 825.208(c) (1999).

[194]. See id.

[195]. See id.

[196]. See id.; see also 29 C.F.R. 825.208(c)-(e) (1999).

[197]. See 29 C.F.R. 825.208(c).

[198]. See Blankenship v. Buchanan Gen. Hosp., Inc., 999 F. Supp. 832 (W.D. Va. 1998).  In the Blankenship case, an employee was terminated 12 weeks after she began a medical leave for failure to return to work at the expiration of FMLA leave. See id.  The employee requested FMLA leave several weeks into a medical leave in which she had been utilizing accumulated sick and vacation leave.  See id. at 834.  The employer granted the requested FMLA leave, retroactively designating the leave as FMLA leave from the first day of her medical leave and notified the employee of this, but the notification was made only a few days before the employee’s leave expired and she was terminated.  See id.  Applying the interim regulations, the court found an FMLA violation holding the employer must designate leave as FMLA leave within a reasonable time of receiving employee notice.  See id. at 836.  Under the final regulations, the employer would be required to notify the employee that she was required to substitute paid leave for unpaid family leave at the time the leave commenced, generally within one to two business days after the leave commenced.  See 29 C.F.R. 825.208(b)(1) (1999).

[199]. See, e.g., Dodgens v. Kent Mfg. Co., 955 F. Supp. 560, 564-65 (D.S.C. 1997).  Dodgens was terminated for mistakes made on the job after he returned from a six week medical leave during which he was allowed to maintain his medical benefits and was reinstated to the position he held when the leave commenced.  See id.  Although the employer failed to explain the FMLA benefits and leave rights to the employee in its employee handbook or at the time the employee requested leave, the court dismissed the employee’s FMLA claim related to failure to provide the required FMLA notices finding it would require elevating form over substance to permit the claim to go forward in light of the fact that Dodgens received all the leave benefits he was guaranteed pursuant to the FMLA.  See id.

[200]. 183 F.3d 155 (2d Cir. 1999).

[201]. See id. at 157.

[202]. See id. at 158.  Sarno’s leave was designated as unpaid leave under the FMLA on May 12, 1995, after the final FMLA regulations became effective.  See id.  For a discussion of the effective dates of the interim and final FMLA regulations, see infra note 210.

[203]. See Sarno, 184 F.3d at 161.

[204]. No. 97-4472, 1999 U.S. App. LEXIS 2073 (6th Cir., Feb. 8, 1999) (unpublished opinion).  In this case, the employer coded the workers’ leave of absence as a workers’ compensation leave and did not code it as a FMLA leave at any time. See id. at *12. The worker argued the employer failed to follow FMLA regulations that prohibit the employer from counting a leave of absence as an FMLA leave without officially designating the leave as such and notifying the employee that the leave is so designated and will be counted as FMLA leave. See id.  The worker argued he was entitled to 12 more weeks of FMLA leave in addition to the twelve months of leave that he had been given.  See id.  The court stated that “it would be an egregious elevation of form over substance to allow Covucci an additional twelve weeks of leave specifically coded as FMLA leave.”  Id. at *14-15.

[205]. See id. at  *15.

[206]. Id.

[207]. See id. at *15.

[208]. See id.

[209]. The final regulations implementing the FMLA were issued on January 6, 1995 but did not become effective until April 6, 1995.  See 60 Fed. Reg. 2180 (1995); 60 Fed. Reg. 6658 (1995).  The interim regulations effective prior to April 6, 1995 also provided that it was the employer’s responsibility to designate leave, paid or unpaid, as FMLA qualifying and to immediately notify the employee that paid leave was so designated.  See 29 C.F.R. 825.208(a)(2), (c), 58 Fed. Reg. 31794, 31821(1993).

[210]. McGregor v. Autozone, Inc., 180 F.3d. 1305 (11th Cir. 1999).

[211]. See id.

[212]. See id. at 1307.

[213]. See id.

[214]. McGregor’s leave began in July, 1995, after the final FMLA regulations were in place.  See id.

[215]. See id.

[216]. See id.

[217]. Id. at 1308 (citations omitted).

[218]. See id.

[219]. Donnellan v. New York City Transit Auth., 1999 U.S. Dist. LEXIS 11103, at *15, n.11 (S.D.N.Y. July 20, 1999).  This case was decided after Sarno v. Douglas Eilliman-Gibbons & Ives, Inc., 183 F.3d. 155 (2d Cir. 1999).  Donnellan was injured and sustained a serious health condition within the meaning of the FMLA. See Donnellan, 1999 U.S. Dist. LEXIS 11103, at *2.  Donnellan took a medical leave that ended 17 weeks later when her position was eliminated.  See id.  Donnellan remained unable to work until approximately 40 weeks after she was terminated.  At no time did her employer designate her leave as FMLA leave.  When Donnellan was able to return to work, she was rehired by her employer but not restored to her former or an equivalent position.  The court dismissed Donnellan’s FMLA claims that rested entirely on her employer’s failure to formally designate her 17-week leave as FMLA leave, holding Donnellan was “denied nothing more than the labeling of her leave as FMLA-qualified.  To find that this technical violation of the designation regulations functions to deny plaintiff of her FMLA rights ‘would be an egregious elevation of form over substance.’”  Id. at *12. The court stopped short of determining the validity of the FMLA regulations; instead the court interpreted the regulations not to redefine or expand the substantive rights conferred by the FMLA.  See id.  On the facts of the case, the court held Donnellan’s employer’s failure to designate the period of leave as FMLA did not interfere or deny any substantive rights to Donnellan.  See id. at *14.

[220]. Id. at *14, n.10.

[221]. David Whyte, The Heart Aroused:  Poetry and the Preservation of the Soul in Corporate America 159 (1996).

[222]. Id. at 160.

 

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