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,
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
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
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.
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.
Legal Compliance and Ethics: How Employment Laws Help Employers
Make Ethical Human Resource Decisions
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
behavior results from experience making decisions according to a system
of ethical rules.
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.
For example, Francis Fukuyama writes:
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.
Thomas Kohler and Matthew Finkin write of the increasingly important
role of employment experiences in the ethical development of people:
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
employment and the manner of its ordering has assumed a greater, if
often overlooked, significance for the character of human beings.
B. An Ethical Framework for Human Resource Decisions May be
Found in Some Employment Laws
rules are often found in laws.
Law, and in particular legislation, can be an important tool to
establish ethical norms and behaviors.
This is a concept that has many contemporary supporters, but
dates from Aristotle’s writings about ethics.
Lon Fuller also draws on Aristotle in his theory about the dual
moral purposes of law: to establish moral duties and to establish moral
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
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.
second moral purpose of law is to encourage people to behave in ways
that will help individuals reach their full potential.
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
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.
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.
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
there is a call for businesses of all sizes to be more ethical.
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.
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’
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.
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.
The unavailability of traditional caregivers, who were
predominantly women not in the workforce, was a key demographic factor
supporting the adoption of the FMLA:
crucial unpaid caretaking services traditionally performed by
wives—care of young children, ill family members, aging parents¾has
[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.
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.”
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.
D. Legal Compliance May In Fact Promote Ethical Human Resource
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.
One of the critical trends discussed at each session was the
evolving relationship between legal compliance and ethics.
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?”
“While most participants agreed with the extension of corporate
social responsibilities beyond traditional organizational boundaries,
they differed on specific corporate roles and responsibilities.”
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.
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.”
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.
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.”
One writer poignantly describes the dilemma that often makes
human resource management decisions so difficult: “when management
sends mixed messages¾when
the rhetoric says ‘we really believe in caring for employees’ and
everyone knows what they really care about is the bottom line.”
To the extent that ethical obligations correlate with legal
compliance obligations, this tension is reduced.
Aspects of Family Medical Leave Compliance that Promote Ethical
Human Resource Decisions
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.
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.
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
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.
The Basic Requirements of the Federal Family Medical Leave Act
FMLA entitles eligible employees to time off from work for serious
health conditions of themselves, family members, and for birth,
adoption, or foster placement.
The basic leave provided by the FMLA is twelve work-weeks of
leave in a leave calculation year.
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.
Employees must also work for an employer with at least fifty
employees in a seventy-five-mile radius.
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.
An equivalent job is one that is virtually identical to the
employee’s former job and includes equal working conditions,
privileges, prerequisites, and status.
FMLA protects employees from discipline or discrimination for using
family medical leave.
This protection effectively modifies even no-fault absenteeism
policies such that FMLA absences may not be counted as incidents of
Bonus programs that reward good attendance must disregard FMLA
FMLA leave users are also protected from retaliation for using
FMLA leave, such as retaliatory unfavorable job assignments upon return
leave need not be paid.
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.
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.
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.
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.
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.
Finally, the FMLA became law when President Clinton signed it on
February 5, 1993.
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.
Effective communication between legislators and constituents to
be regulated is a measure of the ethical nature of a law.
Where there has been effective communication in the legislative
process, the resulting legislation is more likely to be ethical in a
The FMLA is an example of a law that was enacted in a process
involving such communication.
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
This balancing is expressly recognized in the findings and
purposes section of the FMLA.
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.
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
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.
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.
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
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.
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.
Even employees with disabilities who may be granted leave as a
reasonable accommodation do not have the level of job protection the
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
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.
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.
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
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.
FMLA also establishes rules of fair behavior for employers in the form
of non-retaliation provisions.
These non-retaliation rules prevent unfair behavior by employers
that would frustrate the job security provisions of the FMLA.
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.
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.
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.
2. The Habit of Helping Employees Balance Family and Job
Responsibilities in Situations Involving Employee Pregnancy and
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.
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.
FMLA’s provisions for parental leave demonstrate the ethical
attributes of consistency and fairness, which the FMLA requires an
employer to apply. 
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.
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
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.
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.
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.
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.
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
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.
Like biological parents, the leave for adoption or foster
placement must occur within twelve months after the placement of the
child with the employee.
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.
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.
All these preparatory efforts by an employee are protected leave
under the FMLA.
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
4. The Habit of Respecting Employees’ Responsibilities to
Provide Psychological Comfort or Care to Seriously Ill Family Members
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.
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.
The inclusion of compassionate leave in the FMLA is of
significant importance given the increasing unavailability of the
traditional caregivers in our society.
It also provides a limited solution to some of the work versus
family conflicts that confront most employees.
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
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
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.
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
The definition of son or daughter includes biological, adopted,
foster, and stepchildren.
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.
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.
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.
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.
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.
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.
There is no requirement that the child has been mentally or
physically disabled as a minor or prior to contracting a serious health
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
6. The Habit of Providing Flexible Work Schedules for
Employees with Chronic Serious Health Conditions or Caring for Family
Members with Serious Health Conditions
FMLA concepts of “reduced schedule” and “intermittent” leave
provide great flexibility to an employee to balance work and family
“Reduced schedule” FMLA leave may result in a part-time
schedule for an otherwise full-time employee.
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.
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.
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.
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.
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.
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.
may also use “reduced schedule” and “intermittent” FMLA leave to
care for family members who have serious health conditions.
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.
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.
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
This is true whether the unanticipated absence is for the
employee’s or a family member’s serious health condition.
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.
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.
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.
do the medical certification requirements of the FMLA provide much
control of an employee’s use of intermittent leave.
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.
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.
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.
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.
The employer will generally have to rely on the employee to
truthfully advise the employer that the absence was for FMLA purposes.
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 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.
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
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.
There appears to be little room to institute an undue hardship
limitation through statutory construction or administrative regulation.
7. The Habit of Communicating with Employees About
Employees’ Obligations During Leaves and the Consequences of Failing
have many affirmative obligations under the FMLA to communicate with
their employees about the FMLA.
For example, the FMLA is one of the few laws that require an
employer to distribute written information about employee rights to
If the employer has an employee handbook, the employer must also
include information about the FMLA in the handbook.
The general notice requirements apply to all employees, even
employees with no current need for FMLA leave.
are also individual notice requirements that employers owe to employees.
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.
employer’s failure to communicate as required by the FMLA is generally
construed to favor the employee.
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.
An employer’s failure to timely notify employees of medical
certification or fitness-for-duty certification requirements makes the
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.
Further, retroactive designations of FMLA leave after an employee
returns to work are generally not permitted.
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
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.
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.
For example, an employee’s health care provider need not
provide any information to the employer about the prognosis for the
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.
are entitled to even less information from an employee’s health care
provider related to the fitness of an employee to return to work.
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.
However, in some cases a fitness for duty certification will not
be allowed by the FMLA.
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.
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.
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.
No independent medical examinations may be required by an
employer to assess the employee’s fitness for duty.
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.
Therefore, employers must keep medical information about
employees on FMLA leave confidential with few exceptions as provided by
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.
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
9. The Habit of Treating Absences for Family Obligations and
Employee Medical Conditions as Excused Absences
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.
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.
Even no-fault attendance policies must excuse FMLA absences.
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.
This is true even though the employee and employer failed to
recognize an absence was protected by the FMLA.
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.
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
It is fair to make this protection against discipline part of the
FMLA compliance package.
How Ethical Habits Developed Through Compliance With Family
Medical Leave Laws May be Extended to Voluntary Ethical Human Resource
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
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
bill to amend the FMLA has been introduced that would make school
participation leave a requirement for all FMLA-covered employees.
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.
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
B. The Policy of Respecting Employee Family Member
Responsibilities Regardless of Marital Status
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.
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.
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.
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.
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.
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.”
Therefore, this law covers homosexual relationships as well as
other non-marital intimate relationships.
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
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.
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
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.
Occasionally, leave for some of these relatives will be covered
by FMLA under in loco parentis rules as described in Section III, B, 5.
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.
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.
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
A. The FMLA or the FMLA Regulations Should be Amended to
Remove Critical Disincentives to Employers to Provide More Generous
Family Medical Leave Benefits
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
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
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
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.
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
2. The Problem of Granting Leave to an Employee for
Additional Relatives or a Significant Other
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
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.
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.
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.
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.
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.
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.
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.
Similarly, in Seaman
v. Downtown Partnership of Baltimore, Inc.,
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
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
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
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.
The employer generally has two business days to provide these
notifications to the employee.
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
Generally, the employer may not make retroactive FMLA leave
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.
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.
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.
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
U.S. Circuit Courts of Appeals rendered decisions to this effect.
In Sarno v. Douglas
Eilliman-Gibbons & Ives, Inc.,
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.
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.
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.
Covucci v. Service Merchandise Company,
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.
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.”
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.”
Covucci was decided on
facts that were governed by the interim FMLA regulations.
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.
McGregor v. Autozone, Inc.,
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.
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.
McGregor was absent for fifteen weeks, three weeks in excess of
the twelve-week FMLA entitlement.
She argued she was entitled to be restored to her prior or an
equivalent position under FMLA when she returned to work after a
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.”
The Eleventh Circuit found these two regulations in apparent
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:
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.
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.
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.
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:
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
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.
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.
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.
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.
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
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
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.
concludes that “[e]ven the kindest managers face the telling moment
when they must terminate the employment of an inefficient but otherwise
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.
The Act is
intended to balance the demands of the workplace with the needs of
families . . . . FMLA was predicated on two
needs of the American workforce, and the development of
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.
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.
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 . . . .”).
The dependence of
morality on law is insisted upon in the closing pages of
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.
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.
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.
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.
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
. . . 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.
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.