Stress Leave Under the FMLA - Greenberg Traurig LLP

Employment and Labor Law
You’re Stressing
Me Out!
By Natasha L. Wilson
and Keshia A. McCrary
Stress Leave
Under
the FMLA
Although a tricky
maze, employers can
successfully navigate the
FMLA and ensure that
they are appropriately
administering leave
polices for their genuinely
stressed-out employees
even while protecting
against FMLA abuse.
You’re stressing me out! This is becoming a constant
refrain in the workplace all across the country. So much so
that some employees feel the workplace is so stressful that
they need time off to cope. Complaints of workplace
stress to some health care providers have
even resulted in notes “prescribing” rest.
However, this doesn’t mean that employees
are automatically entitled to leave under
the Family and Medical Leave Act (FMLA)
for stress.
Employers must be astute in addressing
problematic employees seeking to use
“workplace stress” as an excuse to get out
of work. Balancing the real and prevalent
issues of workplace stress with the
potential for abuse presents many issues
for employers in this uncertain economy.
Employers must also be alert to identifying
and assisting employees with workplace
stress in legitimate instances and
distinguishing employees seeking to use
and abuse the system.
What Is Workplace Stress?
Most of us experience stress on a daily basis
in our lives. So what differentiates workplace
stress from the daily humdrum?
Anyone who works has likely experienced
job stress. In fact, a Gallup Poll found that
80 percent of American workers reported
feeling stress on the job and needing help
learning how to manage that stress. Workplace
stress can be defined as the harmful
and emotional responses that occur when
the requirements of a job do not match
the capabilities, resources, or needs of the
employee. Job stress can manifest itself in
a number of ways and can also lead to poor
health and even injury.
Almost everyone agrees that job stress
results from the interactions of an employee
in the workplace as well as the conditions
of the work. There is, however, a divergent
view on the importance of a worker’s individual
characteristics versus working conditions
as the primary cause of job stress.
This divergence is important because it
suggests different ways to manage and prevent
workplace stress.
Some believe that differences in individual
characteristics, such as personality and
coping style, are most important in pre-
■ Natasha L. Wilson is a shareholder and Keshia A. McCrary is an associate in the Labor & Employment
Practice Group in the Atlanta office of Greenberg Traurig LLP. Both authors are active members of DRI
and its Employment and Labor Law Committee. Ms. Wilson and Ms. McCrary recently published “Instant
Returns: The Benefits and Risks of Using Social Media in the Employment Process,” in DRI’s E- Discovery
Connection newsletter.
38 ■ For The Defense ■ February 2013
© 2013 DRI. All rights reserved.

dicting whether job conditions will result
in stress. In other words, what is stressful
for one worker may not be stressful for
another coworker with a different personality
or coping style. This school of thought
focuses on employees as individuals and
finding ways to help them cope with their
demanding job conditions as management
and prevention tools.
On the other hand, scientific evidence
also suggests that certain working conditions
are stressful to most people regardless
of personality type. For instance, excessive
workload demands and conflicting expectations
are certain conditions that would be
stressful across the board for any employee.
Accordingly, this school of thought focuses
on job redesign as the primary prevention
and management strategy for work- related
stress.
How Does Workplace Stress
Affect Employees?
How prevalent is this workplace stress? We
all experience stress, whether in our personal
or professional lives, so what do employees
really say about stress on the job?
According to the United States Department
of Health and Human Services National Institute
for Occupational Safety and Health,
workplace stress indeed negatively affects
more than a quarter of the American workforce.
Additionally, according to a survey
conducted by Northwestern National Life,
40 percent of workers reported that their
jobs are“very or extremely stressful.” Further,
a survey conducted by the Families
and Work Institute revealed that 26 percent
of workers reported that they are “often
or very often burned out or stressed by
their work.” Finally, a survey conducted by
Yale University showed that almost a third
of employees reported feeling “quite a bit or
extremely stressed at work.”
Those are just the more extreme numbers.
Job stress is increasingly becoming
a common and costly problem in the
American workplace leaving almost no
one untouched. According to Northwestern
National Life, a quarter of all employees
view their jobs as the primary stressors
in their lives. A Princeton Survey Research
Associates survey also revealed that 75
percent of employees believe that workers
today have more on-the-job stress than
workers a generation ago.
Employees today more than ever are
suffering “worker intensification,” a term
referring to increasing demands placed
on workers asked to do more with the
same amount of time and resources. Due
to the economic recession, employers are
paring down staff and assigning extra
duties to their remaining workers without
additional pay or resources. While
these employees “left behind” are grateful
for their employment, these workers likely
have not had a pay raise in the past few
years, face uncertainties with their 401(k)s,
and struggle continually to meet increasing
food, utility, and gas costs.
This worker intensification is indeed
affecting most of the workforce. According
to a Workplace Options survey, more than
half of employees surveyed have taken on
additional job responsibilities as a result of
the recession. Of those employees taking on
additional duties, 70 percent have done so
without any pay increases.
How Much Does Workplace
Stress Cost?
We know that workplace stress affects more
workers today than any other generation.
But how does workplace stress manifest
itself in costs? According to data from the
Bureau of Labor Statistics, workers who
take time off from work because of stress,
anxiety, or a related disorder will be off the
job for about 20 days per year. This translates
into an annual loss to the employer
of $3,600 for each hourly employee and
$2,650 for each salaried employee.
Workplace stresses are also costing
employers a lot more than lost wages due
to employee absenteeism and attendant
health care costs. The New York Times
reported on Sept 5, 2004 that “Workplace
stress costs the nation more than $300
billion each year in health care, missed
work and the stress- reduction industry
that has grown up to soothe workers and
keep production high.” That $300 billion
price tag comes from the American Institute
of Stress (AIS), which also attributes
this high price tag to “direct medical, legal,
and insurance costs, workers’ compensation
awards as well as tort and FELA [Federal
Employers’ Liability Act] judgments.”
Workplace stress may also lead to workplace
violence, which has become increasingly
commonplace in almost every
Excessive workload
demands and conflicting
expectations are certain
conditions that would
be stressful across the
board for any employee.
occupation. According to the Bureau of Justice
Statistics, 1.7 million people were victims
of violent crimes while working or on
duty in the United States each year from
1993 through 1997. More alarming, the
Bureau of Labor Statistics’ Census of Fatal
Occupational Injuries reported 13,827
workplace homicide victims between 1992
and 2000. And anecdotes and the media increasingly
label workplace incidents with
phrases such as “going postal,” “desk rage,”
and “phone rage.”
How Do Employers Feel About
Workplace Stress and FMLA
Intermittent Leave?
While companies recognize that workplace
stress exists among their employees, they
seem to struggle to balance empathy for
employees genuinely affected by workplace
stress while also seeking to prevent other
employees from abusing the system. Worldat
Work, an association of human resource
professionals from Fortune 500 companies
and other leading organizations, released a
survey, “FMLA Practices and Perspectives,”
of WorldatWork members.
From that survey, 42 percent of Worldat
Work organizations reported that the
potential for or suspicion of employee
abuse causes extreme difficulty maintaining
intermittent FMLA leave. Specifically,
more than half of FMLA absences on an
intermittent basis are unscheduled rather
than scheduled. Further, the overwhelming
majority of intermittent leave-user employees
are providing little, if any, advance
notice to their employers of their need to
be absent. Finally, tracking intermittent
leave proves to be an ongoing challenge for
For The Defense ■ February 2013 ■ 39

Employment and Labor Law
employers. Over 85 percent of employers
find tracking intermittent leave to be moderately
to extremely difficult.
What Does the Family Medical
Leave Act (FMLA) Authorize?
The FMLA entitles an eligible employee
to take up to 12 weeks of unpaid, jobprotected
leave. This leave may be taken
Employees todaymore
than ever are suffering
“worker intensification,” a
term referring to increasing
demands placed on
workers asked to do more
with the same amount
of time and resources.
intermittently, on a reduced schedule, or
as a block in a 12-month period. An eligible
employee is someone who has worked for
the employer for at least 1,250 hours during
the previous 12-month period. FMLA leave
may be taken for specified family and medical
reasons, including the birth of a child,
adoption, to care for an immediate family
member with a serious health condition, or
because the employee is unable to perform
the functions of his or her position due to
a serious health condition.
The FMLA also entitles eligible employees
to take specific leave related to duties
for family members in the armed services.
Specifically, an eligible employee that
is a spouse, son, daughter, parent, or next
of kin of a covered service member, a current
member of the Armed Forces, with a
serious injury or illness may take up to 26
workweeks of unpaid leave during a single
12-month period. If an eligible employee
uses FMLA to care for a covered service
member, the serious injury or illness must
be one suffered in the line of duty or active
duty. An eligible employee may also take
up to 12 workweeks of unpaid leave during
40 ■ For The Defense ■ February 2013
the normal 12-month period established by
the employer for FMLA leave for qualifying
exigencies arising from the fact that the
employee’s spouse, son, daughter, or parent
is on active duty in the National Guard or
Armed Forces Reserves or has been notified
of an impending call or order to active
duty in support of a contingency operation.
What Constitutes a “Serious Health
Condition” Under the FMLA?
A “serious health condition” is an illness,
injury, impairment, or physical or mental
condition that involves either inpatient care
in a hospital, hospice, or residential medical
care facility. Any illness requiring hospitalization
overnight will be considered a
serious health condition. Also, any period
of incapacity or subsequent treatment connected
with the inpatient care will be protected
under the FMLA. Incapacity includes
the inability to work, to attend school, or to
perform other regular daily activities due
to a serious health condition, or the treatment
or recovery from incapacity.
A “serious health condition” may also involve
continuing treatment by a health care
provider. To qualify as a serious health condition,
the continuing treatment must include
a period of incapacity for more than
three consecutive calendar days, and any
subsequent treatment relating to the same
condition must involve either (1) treatment
two or more times, within 30 days of the
first day of incapacity, absent extenuating
circumstances; or (2) treatment by a health
care provider on at least one occasion, resulting
in a regimen of continuing treatment under
the supervision of a health care provider.
A combination of conditions may qualify
as a serious health condition. A serious
health condition is not confined to one
single, specific condition but may include
a compilation of conditions that constitute
one condition in their totality. In fact, several
temporally linked diagnoses, none of
which alone rises to the level of a serious
health condition, can constitute a serious
health condition if taken together. See, e.g.,
Price v. City of Fort Wayne, 117 F.3d 1022,
1023 (7th Cir. 1997).
Can “Stress” Qualify as a Serious
Health Condition Entitling an
Employee to FMLA Leave?
Whether “stress” qualifies as a serious
health condition under the FMLA depends
upon the circumstances.
Generalized Complaints of Feeling
“Stressed” Will Not Suffice as a
Serious Health Condition Notice
Generalized complaints of stress, fatigue,
sadness, or sickness do not qualify as a serious
health condition under the FMLA and
will not suffice to put an employer on notice
of a serious health condition. See Maitland
v. Employease, Inc., No. Civ.A. 1:05-cv-0661,
2006 WL 3090120 (N.D. Ga. Oct. 13, 2006).
In the Maitland case, Employease, Inc.,a
human resources software and services
company, initially hired plaintiff Robyn
Maitland as the manager of training and
eventually promoted her to the director of
education services in 2000. Employease later
cut its workforce through a series of layoffs
from 2001 through 2003 thereby giving
more responsibilities and duties to Maitland
and her two subordinates. Maitland then
complained that she felt “overwhelmed” by
her workload and made several requests for
additional help. Although Employease provided
Maitland with some of her requested
additional support, Maitland then had a
number of interpersonal conflicts with coworkers
and exhibited inappropriate behavior
and communications with management.
Maitland eventually sought counseling
and complained to her licensed professional
counselor that she experienced stress associated
with the volume of work and an e-mail
she received from a manager. Maitland was
then diagnosed with adjustment disorder
and depression. Maitland, however, never reported
her depression to Employease nor did
she disclose her medical treatment due to her
job- related stress. Instead, she told her supervisor
that she felt “psychologically stressed”
and spoke about her “severe, fatigue, and inability
to—very difficult for me to come to
work, that something was wrong with me.”
The court held that the Maitland’s complaints
would give Employease “no reason…
to believe that Maitland’s request for
time off related to anything other than these
generalized complaints of ‘stress.’” Maitland,
2006 WL 3090120, at *15. As such,
Maitland was not eligible for FMLA leave.
U.S. Department of Labor Regulations
Require Other Conditions
The U.S. Department of Labor (DOL) indeed

speaks to stress as it relates to the FMLA.
Mental illness resulting from stress or
allergies may be serious health conditions,
but only if all other conditions are met. 29
C.F.R. §825.114(c). Courts have accordingly
noted that 29 C.F.R. §825.114(c) evinces the
DOL’s interpretation that stress in and of
itself is not a serious health condition.
Stress Alone Is Not a “Serious Health
Condition” Under the FMLA
For instance, the U.S. District Court for
the Northern District of Ohio recently
found that stress, without any evidence
of mental illness cannot constitute a serious
health condition. See Deleva v. Real
Estate Mortgage Corp., No. 1:04cv1299,
2007 U.S. Dist. Lexis 45136, at *39 (N.D.
Ohio June 21, 2007). In the Deleva case,
the plaintiff, Deleva, testified that he experienced
“stress and uncertainty” over a
failed business deal, not as a consequence
of a diagnosed medical condition or working
under a medical condition. Citing 29
C.F.R. §824.114(c), the court held “[t]he
mere incantation of the word ‘stress’—as
presented in this case—does not create a
federal case.” See id. The court further indicated
that because Deleva failed to come
forward with any medical evidence that his
claimed inability to work was because of a
diagnosed medical condition, his FMLA
claim failed as a matter of law.
Do Mental Health Conditions
Resulting from Stress Constitute
Serious Health Conditions?
On the other hand, the U.S. District Court
for the District of Minnesota held that
stress that causes a mental health condition
constitutes a “chronic serious health
condition.” See Pierce v. Teachers Fed.
Credit Union Foundation, No. 09-780 (JNE/
FLN), 2010 WL 550998 (D. Minn. Feb.
9, 2010). In the Pierce case, the plaintiff,
Pierce, previously sought and was granted
FMLA leave for cancer treatment. Within
a year, her cancer went into remission,
and she returned to work. However, when
she returned, Teachers Federal hired a
new chief executive officer who repeatedly
informed Pierce that the company
would experience a lot of changes and that
her position might be eliminated. As a
result, Pierce sought treatment from several
health care professionals after suffering
“anxiety and stress during the daytime,
along with… symptoms [from the cancer
medication, including] bone pain, muscle[]
pain, [and] aches.”
During the interactive process, Pierce
discussed with Teachers Federal her fear of
working reduced hours and losing her benefits.
Pierce was then informed that “stress
resulting from not having enough work
was not covered by FMLA,” which caused
Pierce to have a panic attack. Teachers Federal
asked Pierce to go home that day and
the next day informed her that her position
had been eliminated.
Based upon those facts, the court found
that Pierce had to see a doctor every six
months to refill her anti- anxiety and antidepressant
medications and that her mental
health conditions may have resulted in
episodic periods of incapacity, such as during
panic attacks. Accordingly, the court
found that a reasonable fact finder could
determine that Pierce’s mental health conditions
resulted from stress and could constitute
“chronic serious health conditions”
thereby precluding a summary judgment.
Stress-Related Depression
The U.S. District Court for the Middle
District of Florida recently found that
an employee’s stress- related depression
raised a question of fact as to whether the
employee had a serious medical condition
under the FMLA. See Hurley v. Kent of
Naples, Inc., Nos. 2:10-cv-334FtM-29SPC;
2:10-cv-752-FtM-29DNF, 2011 WL 2217770,
at *7 (M.D. Fla. June 7, 2011). The plaintiff,
Hurley, was medically diagnosed with,
among other things, depression and anxiety
related to his job. Hurley’s health care
providers recommended that Hurley take
time off work to manage his stress. The
court found that while the evidence at
least raised a question about whether Hurley’s
stress- related depression was a serious
health condition, Hurley did not present
sufficient evidence showing that he was
incapacitated due to his depression, which
precluded a summary judgment for Hurley.
Stress-Related Insomnia
and Anxiety Attacks
The U.S. District Court for the Middle District
of Georgia also found that job- related
stress causing insomnia, anxiety attacks,
and depression raised a question of fact
about whether the employee had a serious
medical condition under the FMLA.
See Snelling v. Stark Props., No. 5:05CV46
DF, 2006 WL 2078562, at *9 (M.D. Ga. July
24, 2006). After the plaintiff, Snelling, requested
more responsibilities, her employer,
JPC, granted additional job duties to Snelling.
Due to issues with her supervisors,
Snelling sought medical treatment for her
While companies
recognize that workplace
stress exists among their
employees, they seem to
struggle to balance empathy
for employees genuinely
affected by workplace
stress while also seeking
to prevent other employees
from abusing the system.
anxiety attacks, insomnia, and depression.
Snelling proffered evidence that she was
under a regimen of continuing treatment
consisting of multiple prescription medications
to combat these symptoms. Accordingly,
the court held that Snelling submitted
enough information to notify her employer
that she may have been suffering from a “serious
health condition.”
Stress-Related Conditions
and Physical Symptoms
The Seventh Circuit also found that jobrelated
stress manifesting itself in physical
symptoms may constitute a serious medical
condition under the FMLA. Price v.
City of Fort Wayne, 117 F.3d 1022 (7th Cir.
1997). Price worked for the City of Fort
Wayne for almost 10 years until she was
terminated for excessive absences. Price
submitted an affidavit from her doctor stating
that she suffered from an assemblage of
diagnoses including elevated blood pres-
For The Defense ■ February 2013 ■ 41

Employment and Labor Law
sure, hyperthyroidism, back pain, severe
headaches, sinusitis, infested cyst, sore
throat, swelling throat, coughing and feelings
of stress and depression. Price’s doctor
further attested that Price came to his
office in “an alarming condition,” she “was
on the edge of a break-down, both physically
and mentally,” and “there was no way
[that Price] could perform her job, due to
The FMLAspecifically
allows an employer to
question employees about
requested absences
to determine whether
the FMLA applies.
her mental and physical state, and… to
attempt to continue to work in her condition
would be seriously detrimental to her
health.”
The district court held that Price’s multiple
diagnoses did not rise to the level of a
serious health condition as a matter of law
and granted a summary judgment to the
City of Fort Wayne. The Seventh Circuit
reversed the district court’s grant of a summary
judgment, holding that while such
multiple diagnoses may not rise to the level
of a serious medical condition as a matter
of fact, such diagnoses were sufficient to
survive a summary judgment.
42 ■ For The Defense ■ February 2013
Which FMLA Entitlement
Causes the Most Problems?
While Congress enacted the FMLA to
attempt to balance the demands of the
workplace with the needs of families, certain
bad apples have found opportunities
to exploit the FMLA in the workplace. The
FMLA has become the single largest source
of uncontrolled absences and, thus, the single
largest source of all the costs that those
absences create: missed deadlines, late
shipments, lost business, temporary help
costs, and overworked staff.
Even the DOL notes that the most serious
FMLA problems arise with “intermittent
leave” for which employees obtain
certification that they suffer ongoing medical
conditions. While the original intent
of intermittent leave was to accommodate
employees with chronic ailments that
might occasionally flare up and require
minimal time, this type of leave has proved
vulnerable to abuse. A National Association
of Manufacturers survey revealed that
more than half of the requests for intermittent
leave were made either on the day of
the leave, after the leave was taken, or without
any notice whatsoever. Moreover, the
employer survey respondents reported having
to absorb significant operating costs in
lost productivity and missed deadlines due
to the intermittent leave. In addition to the
tangible losses such as unwanted overtime
and loss of vacation, abused intermittent
leave has additional intangible effects on
productivity, morale, turnover, and business
retention.
How Can Employers Curb
Employee FMLA Abuse?
Given the very real medical problems
that job- related stresses induce, as well as
employers’ legitimate business concerns,
employers should remain alert to ensuring
FMLA- compliance while also protecting
against FMLA abuse. An employer
should know the leave “triggers” and recognize,
based on the information that it has,
when an employee’s absence may qualify as
FMLA leave and ask for more information
if appropriate. An employer should also
first verify and confirm that an employee is
eligible for FMLA leave. So, what are some
suggested best practices when dealing with
FMLA leave requests in general?
Enforce company leave policies. An employer
should work with managers to ensure
that the company’s leave policies, including
an FMLA policy, are current and uniformly
enforced and ensure that managers are familiar
with the FMLA paperwork. An employer
must remain compliant with both
federal FMLA laws and constantly changing
state and other medical leave requirements.
State law compliance is crucial for companies
that have multiple locations. When in
doubt, seek advice from outside counsel.
Train management. Supervisors do not
need to be experts on the FMLA and comparable
state sick and medical leave laws,
but they do need to understand the basics
of the law, including that employers are
prohibited from interfering or retaliating
against employees who take FMLA
leave. Employers should also be aware that
the provisions of the FMLA arm employees
with two causes of action they can
bring against an employer (1) an interference
claim which makes it “unlawful for
any employer to interfere with, restrain,
or deny the exercise of or the attempt to
exercise” any right provided by the FMLA,
see 29 U.S.C. 2615(a)(1); and (2) a retaliation/discrimination
claim found in 29
U.S.C. 2615(a)(2) and 2615(b) of the statute
which prohibits employers from discharging
or discriminating against employees
for “opposing any practice made unlawful”
by the FMLA. Courts analyzing the merits
of a retaliation/discrimination claim
rely on the traditional anti- discrimination
burden- shifting standards as articulated
in McDonnell Douglas and Price Waterhouse.
However, analysis of an interference
claim does not require discriminatory
intent. Rather, a plaintiff alleging an interference
claim generally need only show that
he or she was entitled to benefits under the
FMLA and was denied them.
Put it in writing. Require employees to
submit a leave request form for all absences.
When an employee calls in sick or requests
a day off for any reason, require a written
request. While a covered employer cannot
prohibit verbal FMLA leave requests,
requiring an employee to followup by submitting
a written request can deter abuse.
An employer has a right to question
employees requesting FMLA leave. When
faced with leave requests an employer
should ask all necessary and relevant questions,
especially when an employee’s reason
for requesting the leave is unclear.
The FMLA specifically allows an employer
to question employees about requested
absences to determine whether the FMLA
applies. Consider preparing a standard list
of questions for supervisors to ask employees
seeking FMLA leave on the basis of purported
illness. An employee who chooses
not to respond to reasonable questions
from an employer about not only the need
for time off, but also the nature of the need
for leave and the timing and duration of the
absence, may lose his or her right to FMLA
protection.
Stress Leave, continued on page 82

Stress Leave, from page 42
Require medical certification. One of
the best tools that an employer has in the
quest to combat FMLA abuse is the medical
certification form. Under the FMLA,
an employer is permitted to obtain necessary
medical information to determine
whether an employee suffers from a serious
health condition, thus qualifying him
or her for FMLA leave. If the employee
does not provide the medical certification,
then the absence will not be considered
FMLA leave.
Use clarification or recertification mechanisms.
If the information provided in a
medical certification is insufficient because
it is vague, ambiguous, or otherwise nonresponsive,
an employer has a right to require
that the employee provide additional information.
An employee who refuses to allow
the employer to seek clarification may be
denied the leave.
Consider obtaining permission to contact
an employee. The FMLA generally permits
an employer to request periodic reports on
the employee’s status and intent to return
to work and recertifications. Nevertheless,
an employer must fight the tendency
to take contact with an employee to the
extreme. Employers should remember that
FMLA leave is indeed unpaid leave, and
so communications with an employee on
FMLA leave may entitle that employee to
paid wages. Accordingly, employers should
centralize and monitor communications
and make sure that such communications
are limited. An employer might even consider
securing an employee’s authorization
to contact him or her during his or her
FMLA leave regarding work- related issues.
Consider creative, preventative strategies
to curb abuse. Employers may also
consider creative approaches to combat
abuses still within the parameters of the
FMLA. For instance, employers might
remind or request that employees schedule
their medical treatments outside of the
work day. Employers may also simply add
“ability to handle stress” to a specific position’s
job description. An employer could
even transfer an employee to another position
if the intermittent leave is too disruptive
to the position.
Although a tricky maze, employers
can successfully navigate the FMLA and
ensure that they are appropriately administering
leave polices for their genuinely
stressed-out employees even while protecting
against FMLA abuse.
82 ■ For The Defense ■ February 2013