Stress Leave Under the FMLA - Greenberg Traurig LLP
Stress Leave Under the FMLA - Greenberg Traurig LLP
Stress Leave Under the FMLA - Greenberg Traurig LLP
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Employment and Labor Law<br />
You’re <strong>Stress</strong>ing<br />
Me Out!<br />
By Natasha L. Wilson<br />
and Keshia A. McCrary<br />
<strong>Stress</strong> <strong>Leave</strong><br />
<strong>Under</strong><br />
<strong>the</strong> <strong>FMLA</strong><br />
Although a tricky<br />
maze, employers can<br />
successfully navigate <strong>the</strong><br />
<strong>FMLA</strong> and ensure that<br />
<strong>the</strong>y are appropriately<br />
administering leave<br />
polices for <strong>the</strong>ir genuinely<br />
stressed-out employees<br />
even while protecting<br />
against <strong>FMLA</strong> abuse.<br />
You’re stressing me out! This is becoming a constant<br />
refrain in <strong>the</strong> workplace all across <strong>the</strong> country. So much so<br />
that some employees feel <strong>the</strong> workplace is so stressful that<br />
<strong>the</strong>y need time off to cope. Complaints of workplace<br />
stress to some health care providers have<br />
even resulted in notes “prescribing” rest.<br />
However, this doesn’t mean that employees<br />
are automatically entitled to leave under<br />
<strong>the</strong> Family and Medical <strong>Leave</strong> Act (<strong>FMLA</strong>)<br />
for stress.<br />
Employers must be astute in addressing<br />
problematic employees seeking to use<br />
“workplace stress” as an excuse to get out<br />
of work. Balancing <strong>the</strong> real and prevalent<br />
issues of workplace stress with <strong>the</strong><br />
potential for abuse presents many issues<br />
for employers in this uncertain economy.<br />
Employers must also be alert to identifying<br />
and assisting employees with workplace<br />
stress in legitimate instances and<br />
distinguishing employees seeking to use<br />
and abuse <strong>the</strong> system.<br />
What Is Workplace <strong>Stress</strong>?<br />
Most of us experience stress on a daily basis<br />
in our lives. So what differentiates workplace<br />
stress from <strong>the</strong> daily humdrum?<br />
Anyone who works has likely experienced<br />
job stress. In fact, a Gallup Poll found that<br />
80 percent of American workers reported<br />
feeling stress on <strong>the</strong> job and needing help<br />
learning how to manage that stress. Workplace<br />
stress can be defined as <strong>the</strong> harmful<br />
and emotional responses that occur when<br />
<strong>the</strong> requirements of a job do not match<br />
<strong>the</strong> capabilities, resources, or needs of <strong>the</strong><br />
employee. Job stress can manifest itself in<br />
a number of ways and can also lead to poor<br />
health and even injury.<br />
Almost everyone agrees that job stress<br />
results from <strong>the</strong> interactions of an employee<br />
in <strong>the</strong> workplace as well as <strong>the</strong> conditions<br />
of <strong>the</strong> work. There is, however, a divergent<br />
view on <strong>the</strong> importance of a worker’s individual<br />
characteristics versus working conditions<br />
as <strong>the</strong> primary cause of job stress.<br />
This divergence is important because it<br />
suggests different ways to manage and prevent<br />
workplace stress.<br />
Some believe that differences in individual<br />
characteristics, such as personality and<br />
coping style, are most important in pre-<br />
■ Natasha L. Wilson is a shareholder and Keshia A. McCrary is an associate in <strong>the</strong> Labor & Employment<br />
Practice Group in <strong>the</strong> Atlanta office of <strong>Greenberg</strong> <strong>Traurig</strong> <strong>LLP</strong>. Both authors are active members of DRI<br />
and its Employment and Labor Law Committee. Ms. Wilson and Ms. McCrary recently published “Instant<br />
Returns: The Benefits and Risks of Using Social Media in <strong>the</strong> Employment Process,” in DRI’s E- Discovery<br />
Connection newsletter.<br />
38 ■ For The Defense ■ February 2013<br />
© 2013 DRI. All rights reserved.
dicting whe<strong>the</strong>r job conditions will result<br />
in stress. In o<strong>the</strong>r words, what is stressful<br />
for one worker may not be stressful for<br />
ano<strong>the</strong>r coworker with a different personality<br />
or coping style. This school of thought<br />
focuses on employees as individuals and<br />
finding ways to help <strong>the</strong>m cope with <strong>the</strong>ir<br />
demanding job conditions as management<br />
and prevention tools.<br />
On <strong>the</strong> o<strong>the</strong>r hand, scientific evidence<br />
also suggests that certain working conditions<br />
are stressful to most people regardless<br />
of personality type. For instance, excessive<br />
workload demands and conflicting expectations<br />
are certain conditions that would be<br />
stressful across <strong>the</strong> board for any employee.<br />
Accordingly, this school of thought focuses<br />
on job redesign as <strong>the</strong> primary prevention<br />
and management strategy for work- related<br />
stress.<br />
How Does Workplace <strong>Stress</strong><br />
Affect Employees?<br />
How prevalent is this workplace stress? We<br />
all experience stress, whe<strong>the</strong>r in our personal<br />
or professional lives, so what do employees<br />
really say about stress on <strong>the</strong> job?<br />
According to <strong>the</strong> United States Department<br />
of Health and Human Services National Institute<br />
for Occupational Safety and Health,<br />
workplace stress indeed negatively affects<br />
more than a quarter of <strong>the</strong> American workforce.<br />
Additionally, according to a survey<br />
conducted by Northwestern National Life,<br />
40 percent of workers reported that <strong>the</strong>ir<br />
jobs are“very or extremely stressful.” Fur<strong>the</strong>r,<br />
a survey conducted by <strong>the</strong> Families<br />
and Work Institute revealed that 26 percent<br />
of workers reported that <strong>the</strong>y are “often<br />
or very often burned out or stressed by<br />
<strong>the</strong>ir work.” Finally, a survey conducted by<br />
Yale University showed that almost a third<br />
of employees reported feeling “quite a bit or<br />
extremely stressed at work.”<br />
Those are just <strong>the</strong> more extreme numbers.<br />
Job stress is increasingly becoming<br />
a common and costly problem in <strong>the</strong><br />
American workplace leaving almost no<br />
one untouched. According to Northwestern<br />
National Life, a quarter of all employees<br />
view <strong>the</strong>ir jobs as <strong>the</strong> primary stressors<br />
in <strong>the</strong>ir lives. A Princeton Survey Research<br />
Associates survey also revealed that 75<br />
percent of employees believe that workers<br />
today have more on-<strong>the</strong>-job stress than<br />
workers a generation ago.<br />
Employees today more than ever are<br />
suffering “worker intensification,” a term<br />
referring to increasing demands placed<br />
on workers asked to do more with <strong>the</strong><br />
same amount of time and resources. Due<br />
to <strong>the</strong> economic recession, employers are<br />
paring down staff and assigning extra<br />
duties to <strong>the</strong>ir remaining workers without<br />
additional pay or resources. While<br />
<strong>the</strong>se employees “left behind” are grateful<br />
for <strong>the</strong>ir employment, <strong>the</strong>se workers likely<br />
have not had a pay raise in <strong>the</strong> past few<br />
years, face uncertainties with <strong>the</strong>ir 401(k)s,<br />
and struggle continually to meet increasing<br />
food, utility, and gas costs.<br />
This worker intensification is indeed<br />
affecting most of <strong>the</strong> workforce. According<br />
to a Workplace Options survey, more than<br />
half of employees surveyed have taken on<br />
additional job responsibilities as a result of<br />
<strong>the</strong> recession. Of those employees taking on<br />
additional duties, 70 percent have done so<br />
without any pay increases.<br />
How Much Does Workplace<br />
<strong>Stress</strong> Cost?<br />
We know that workplace stress affects more<br />
workers today than any o<strong>the</strong>r generation.<br />
But how does workplace stress manifest<br />
itself in costs? According to data from <strong>the</strong><br />
Bureau of Labor Statistics, workers who<br />
take time off from work because of stress,<br />
anxiety, or a related disorder will be off <strong>the</strong><br />
job for about 20 days per year. This translates<br />
into an annual loss to <strong>the</strong> employer<br />
of $3,600 for each hourly employee and<br />
$2,650 for each salaried employee.<br />
Workplace stresses are also costing<br />
employers a lot more than lost wages due<br />
to employee absenteeism and attendant<br />
health care costs. The New York Times<br />
reported on Sept 5, 2004 that “Workplace<br />
stress costs <strong>the</strong> nation more than $300<br />
billion each year in health care, missed<br />
work and <strong>the</strong> stress- reduction industry<br />
that has grown up to soo<strong>the</strong> workers and<br />
keep production high.” That $300 billion<br />
price tag comes from <strong>the</strong> American Institute<br />
of <strong>Stress</strong> (AIS), which also attributes<br />
this high price tag to “direct medical, legal,<br />
and insurance costs, workers’ compensation<br />
awards as well as tort and FELA [Federal<br />
Employers’ Liability Act] judgments.”<br />
Workplace stress may also lead to workplace<br />
violence, which has become increasingly<br />
commonplace in almost every<br />
Excessive workload<br />
demands and conflicting<br />
expectations are certain<br />
conditions that would<br />
be stressful across <strong>the</strong><br />
board for any employee.<br />
occupation. According to <strong>the</strong> Bureau of Justice<br />
Statistics, 1.7 million people were victims<br />
of violent crimes while working or on<br />
duty in <strong>the</strong> United States each year from<br />
1993 through 1997. More alarming, <strong>the</strong><br />
Bureau of Labor Statistics’ Census of Fatal<br />
Occupational Injuries reported 13,827<br />
workplace homicide victims between 1992<br />
and 2000. And anecdotes and <strong>the</strong> media increasingly<br />
label workplace incidents with<br />
phrases such as “going postal,” “desk rage,”<br />
and “phone rage.”<br />
How Do Employers Feel About<br />
Workplace <strong>Stress</strong> and <strong>FMLA</strong><br />
Intermittent <strong>Leave</strong>?<br />
While companies recognize that workplace<br />
stress exists among <strong>the</strong>ir employees, <strong>the</strong>y<br />
seem to struggle to balance empathy for<br />
employees genuinely affected by workplace<br />
stress while also seeking to prevent o<strong>the</strong>r<br />
employees from abusing <strong>the</strong> system. Worldat<br />
Work, an association of human resource<br />
professionals from Fortune 500 companies<br />
and o<strong>the</strong>r leading organizations, released a<br />
survey, “<strong>FMLA</strong> Practices and Perspectives,”<br />
of WorldatWork members.<br />
From that survey, 42 percent of Worldat<br />
Work organizations reported that <strong>the</strong><br />
potential for or suspicion of employee<br />
abuse causes extreme difficulty maintaining<br />
intermittent <strong>FMLA</strong> leave. Specifically,<br />
more than half of <strong>FMLA</strong> absences on an<br />
intermittent basis are unscheduled ra<strong>the</strong>r<br />
than scheduled. Fur<strong>the</strong>r, <strong>the</strong> overwhelming<br />
majority of intermittent leave-user employees<br />
are providing little, if any, advance<br />
notice to <strong>the</strong>ir employers of <strong>the</strong>ir need to<br />
be absent. Finally, tracking intermittent<br />
leave proves to be an ongoing challenge for<br />
For The Defense ■ February 2013 ■ 39
Employment and Labor Law<br />
employers. Over 85 percent of employers<br />
find tracking intermittent leave to be moderately<br />
to extremely difficult.<br />
What Does <strong>the</strong> Family Medical<br />
<strong>Leave</strong> Act (<strong>FMLA</strong>) Authorize?<br />
The <strong>FMLA</strong> entitles an eligible employee<br />
to take up to 12 weeks of unpaid, jobprotected<br />
leave. This leave may be taken<br />
Employees todaymore<br />
than ever are suffering<br />
“worker intensification,” a<br />
term referring to increasing<br />
demands placed on<br />
workers asked to do more<br />
with <strong>the</strong> same amount<br />
of time and resources.<br />
intermittently, on a reduced schedule, or<br />
as a block in a 12-month period. An eligible<br />
employee is someone who has worked for<br />
<strong>the</strong> employer for at least 1,250 hours during<br />
<strong>the</strong> previous 12-month period. <strong>FMLA</strong> leave<br />
may be taken for specified family and medical<br />
reasons, including <strong>the</strong> birth of a child,<br />
adoption, to care for an immediate family<br />
member with a serious health condition, or<br />
because <strong>the</strong> employee is unable to perform<br />
<strong>the</strong> functions of his or her position due to<br />
a serious health condition.<br />
The <strong>FMLA</strong> also entitles eligible employees<br />
to take specific leave related to duties<br />
for family members in <strong>the</strong> armed services.<br />
Specifically, an eligible employee that<br />
is a spouse, son, daughter, parent, or next<br />
of kin of a covered service member, a current<br />
member of <strong>the</strong> Armed Forces, with a<br />
serious injury or illness may take up to 26<br />
workweeks of unpaid leave during a single<br />
12-month period. If an eligible employee<br />
uses <strong>FMLA</strong> to care for a covered service<br />
member, <strong>the</strong> serious injury or illness must<br />
be one suffered in <strong>the</strong> line of duty or active<br />
duty. An eligible employee may also take<br />
up to 12 workweeks of unpaid leave during<br />
40 ■ For The Defense ■ February 2013<br />
<strong>the</strong> normal 12-month period established by<br />
<strong>the</strong> employer for <strong>FMLA</strong> leave for qualifying<br />
exigencies arising from <strong>the</strong> fact that <strong>the</strong><br />
employee’s spouse, son, daughter, or parent<br />
is on active duty in <strong>the</strong> National Guard or<br />
Armed Forces Reserves or has been notified<br />
of an impending call or order to active<br />
duty in support of a contingency operation.<br />
What Constitutes a “Serious Health<br />
Condition” <strong>Under</strong> <strong>the</strong> <strong>FMLA</strong>?<br />
A “serious health condition” is an illness,<br />
injury, impairment, or physical or mental<br />
condition that involves ei<strong>the</strong>r inpatient care<br />
in a hospital, hospice, or residential medical<br />
care facility. Any illness requiring hospitalization<br />
overnight will be considered a<br />
serious health condition. Also, any period<br />
of incapacity or subsequent treatment connected<br />
with <strong>the</strong> inpatient care will be protected<br />
under <strong>the</strong> <strong>FMLA</strong>. Incapacity includes<br />
<strong>the</strong> inability to work, to attend school, or to<br />
perform o<strong>the</strong>r regular daily activities due<br />
to a serious health condition, or <strong>the</strong> treatment<br />
or recovery from incapacity.<br />
A “serious health condition” may also involve<br />
continuing treatment by a health care<br />
provider. To qualify as a serious health condition,<br />
<strong>the</strong> continuing treatment must include<br />
a period of incapacity for more than<br />
three consecutive calendar days, and any<br />
subsequent treatment relating to <strong>the</strong> same<br />
condition must involve ei<strong>the</strong>r (1) treatment<br />
two or more times, within 30 days of <strong>the</strong><br />
first day of incapacity, absent extenuating<br />
circumstances; or (2) treatment by a health<br />
care provider on at least one occasion, resulting<br />
in a regimen of continuing treatment under<br />
<strong>the</strong> supervision of a health care provider.<br />
A combination of conditions may qualify<br />
as a serious health condition. A serious<br />
health condition is not confined to one<br />
single, specific condition but may include<br />
a compilation of conditions that constitute<br />
one condition in <strong>the</strong>ir totality. In fact, several<br />
temporally linked diagnoses, none of<br />
which alone rises to <strong>the</strong> level of a serious<br />
health condition, can constitute a serious<br />
health condition if taken toge<strong>the</strong>r. See, e.g.,<br />
Price v. City of Fort Wayne, 117 F.3d 1022,<br />
1023 (7th Cir. 1997).<br />
Can “<strong>Stress</strong>” Qualify as a Serious<br />
Health Condition Entitling an<br />
Employee to <strong>FMLA</strong> <strong>Leave</strong>?<br />
Whe<strong>the</strong>r “stress” qualifies as a serious<br />
health condition under <strong>the</strong> <strong>FMLA</strong> depends<br />
upon <strong>the</strong> circumstances.<br />
Generalized Complaints of Feeling<br />
“<strong>Stress</strong>ed” Will Not Suffice as a<br />
Serious Health Condition Notice<br />
Generalized complaints of stress, fatigue,<br />
sadness, or sickness do not qualify as a serious<br />
health condition under <strong>the</strong> <strong>FMLA</strong> and<br />
will not suffice to put an employer on notice<br />
of a serious health condition. See Maitland<br />
v. Employease, Inc., No. Civ.A. 1:05-cv-0661,<br />
2006 WL 3090120 (N.D. Ga. Oct. 13, 2006).<br />
In <strong>the</strong> Maitland case, Employease, Inc.,a<br />
human resources software and services<br />
company, initially hired plaintiff Robyn<br />
Maitland as <strong>the</strong> manager of training and<br />
eventually promoted her to <strong>the</strong> director of<br />
education services in 2000. Employease later<br />
cut its workforce through a series of layoffs<br />
from 2001 through 2003 <strong>the</strong>reby giving<br />
more responsibilities and duties to Maitland<br />
and her two subordinates. Maitland <strong>the</strong>n<br />
complained that she felt “overwhelmed” by<br />
her workload and made several requests for<br />
additional help. Although Employease provided<br />
Maitland with some of her requested<br />
additional support, Maitland <strong>the</strong>n had a<br />
number of interpersonal conflicts with coworkers<br />
and exhibited inappropriate behavior<br />
and communications with management.<br />
Maitland eventually sought counseling<br />
and complained to her licensed professional<br />
counselor that she experienced stress associated<br />
with <strong>the</strong> volume of work and an e-mail<br />
she received from a manager. Maitland was<br />
<strong>the</strong>n diagnosed with adjustment disorder<br />
and depression. Maitland, however, never reported<br />
her depression to Employease nor did<br />
she disclose her medical treatment due to her<br />
job- related stress. Instead, she told her supervisor<br />
that she felt “psychologically stressed”<br />
and spoke about her “severe, fatigue, and inability<br />
to—very difficult for me to come to<br />
work, that something was wrong with me.”<br />
The court held that <strong>the</strong> Maitland’s complaints<br />
would give Employease “no reason…<br />
to believe that Maitland’s request for<br />
time off related to anything o<strong>the</strong>r than <strong>the</strong>se<br />
generalized complaints of ‘stress.’” Maitland,<br />
2006 WL 3090120, at *15. As such,<br />
Maitland was not eligible for <strong>FMLA</strong> leave.<br />
U.S. Department of Labor Regulations<br />
Require O<strong>the</strong>r Conditions<br />
The U.S. Department of Labor (DOL) indeed
speaks to stress as it relates to <strong>the</strong> <strong>FMLA</strong>.<br />
Mental illness resulting from stress or<br />
allergies may be serious health conditions,<br />
but only if all o<strong>the</strong>r conditions are met. 29<br />
C.F.R. §825.114(c). Courts have accordingly<br />
noted that 29 C.F.R. §825.114(c) evinces <strong>the</strong><br />
DOL’s interpretation that stress in and of<br />
itself is not a serious health condition.<br />
<strong>Stress</strong> Alone Is Not a “Serious Health<br />
Condition” <strong>Under</strong> <strong>the</strong> <strong>FMLA</strong><br />
For instance, <strong>the</strong> U.S. District Court for<br />
<strong>the</strong> Nor<strong>the</strong>rn District of Ohio recently<br />
found that stress, without any evidence<br />
of mental illness cannot constitute a serious<br />
health condition. See Deleva v. Real<br />
Estate Mortgage Corp., No. 1:04cv1299,<br />
2007 U.S. Dist. Lexis 45136, at *39 (N.D.<br />
Ohio June 21, 2007). In <strong>the</strong> Deleva case,<br />
<strong>the</strong> plaintiff, Deleva, testified that he experienced<br />
“stress and uncertainty” over a<br />
failed business deal, not as a consequence<br />
of a diagnosed medical condition or working<br />
under a medical condition. Citing 29<br />
C.F.R. §824.114(c), <strong>the</strong> court held “[t]he<br />
mere incantation of <strong>the</strong> word ‘stress’—as<br />
presented in this case—does not create a<br />
federal case.” See id. The court fur<strong>the</strong>r indicated<br />
that because Deleva failed to come<br />
forward with any medical evidence that his<br />
claimed inability to work was because of a<br />
diagnosed medical condition, his <strong>FMLA</strong><br />
claim failed as a matter of law.<br />
Do Mental Health Conditions<br />
Resulting from <strong>Stress</strong> Constitute<br />
Serious Health Conditions?<br />
On <strong>the</strong> o<strong>the</strong>r hand, <strong>the</strong> U.S. District Court<br />
for <strong>the</strong> District of Minnesota held that<br />
stress that causes a mental health condition<br />
constitutes a “chronic serious health<br />
condition.” See Pierce v. Teachers Fed.<br />
Credit Union Foundation, No. 09-780 (JNE/<br />
FLN), 2010 WL 550998 (D. Minn. Feb.<br />
9, 2010). In <strong>the</strong> Pierce case, <strong>the</strong> plaintiff,<br />
Pierce, previously sought and was granted<br />
<strong>FMLA</strong> leave for cancer treatment. Within<br />
a year, her cancer went into remission,<br />
and she returned to work. However, when<br />
she returned, Teachers Federal hired a<br />
new chief executive officer who repeatedly<br />
informed Pierce that <strong>the</strong> company<br />
would experience a lot of changes and that<br />
her position might be eliminated. As a<br />
result, Pierce sought treatment from several<br />
health care professionals after suffering<br />
“anxiety and stress during <strong>the</strong> daytime,<br />
along with… symptoms [from <strong>the</strong> cancer<br />
medication, including] bone pain, muscle[]<br />
pain, [and] aches.”<br />
During <strong>the</strong> interactive process, Pierce<br />
discussed with Teachers Federal her fear of<br />
working reduced hours and losing her benefits.<br />
Pierce was <strong>the</strong>n informed that “stress<br />
resulting from not having enough work<br />
was not covered by <strong>FMLA</strong>,” which caused<br />
Pierce to have a panic attack. Teachers Federal<br />
asked Pierce to go home that day and<br />
<strong>the</strong> next day informed her that her position<br />
had been eliminated.<br />
Based upon those facts, <strong>the</strong> court found<br />
that Pierce had to see a doctor every six<br />
months to refill her anti- anxiety and antidepressant<br />
medications and that her mental<br />
health conditions may have resulted in<br />
episodic periods of incapacity, such as during<br />
panic attacks. Accordingly, <strong>the</strong> court<br />
found that a reasonable fact finder could<br />
determine that Pierce’s mental health conditions<br />
resulted from stress and could constitute<br />
“chronic serious health conditions”<br />
<strong>the</strong>reby precluding a summary judgment.<br />
<strong>Stress</strong>-Related Depression<br />
The U.S. District Court for <strong>the</strong> Middle<br />
District of Florida recently found that<br />
an employee’s stress- related depression<br />
raised a question of fact as to whe<strong>the</strong>r <strong>the</strong><br />
employee had a serious medical condition<br />
under <strong>the</strong> <strong>FMLA</strong>. See Hurley v. Kent of<br />
Naples, Inc., Nos. 2:10-cv-334FtM-29SPC;<br />
2:10-cv-752-FtM-29DNF, 2011 WL 2217770,<br />
at *7 (M.D. Fla. June 7, 2011). The plaintiff,<br />
Hurley, was medically diagnosed with,<br />
among o<strong>the</strong>r things, depression and anxiety<br />
related to his job. Hurley’s health care<br />
providers recommended that Hurley take<br />
time off work to manage his stress. The<br />
court found that while <strong>the</strong> evidence at<br />
least raised a question about whe<strong>the</strong>r Hurley’s<br />
stress- related depression was a serious<br />
health condition, Hurley did not present<br />
sufficient evidence showing that he was<br />
incapacitated due to his depression, which<br />
precluded a summary judgment for Hurley.<br />
<strong>Stress</strong>-Related Insomnia<br />
and Anxiety Attacks<br />
The U.S. District Court for <strong>the</strong> Middle District<br />
of Georgia also found that job- related<br />
stress causing insomnia, anxiety attacks,<br />
and depression raised a question of fact<br />
about whe<strong>the</strong>r <strong>the</strong> employee had a serious<br />
medical condition under <strong>the</strong> <strong>FMLA</strong>.<br />
See Snelling v. Stark Props., No. 5:05CV46<br />
DF, 2006 WL 2078562, at *9 (M.D. Ga. July<br />
24, 2006). After <strong>the</strong> plaintiff, Snelling, requested<br />
more responsibilities, her employer,<br />
JPC, granted additional job duties to Snelling.<br />
Due to issues with her supervisors,<br />
Snelling sought medical treatment for her<br />
While companies<br />
recognize that workplace<br />
stress exists among <strong>the</strong>ir<br />
employees, <strong>the</strong>y seem to<br />
struggle to balance empathy<br />
for employees genuinely<br />
affected by workplace<br />
stress while also seeking<br />
to prevent o<strong>the</strong>r employees<br />
from abusing <strong>the</strong> system.<br />
anxiety attacks, insomnia, and depression.<br />
Snelling proffered evidence that she was<br />
under a regimen of continuing treatment<br />
consisting of multiple prescription medications<br />
to combat <strong>the</strong>se symptoms. Accordingly,<br />
<strong>the</strong> court held that Snelling submitted<br />
enough information to notify her employer<br />
that she may have been suffering from a “serious<br />
health condition.”<br />
<strong>Stress</strong>-Related Conditions<br />
and Physical Symptoms<br />
The Seventh Circuit also found that jobrelated<br />
stress manifesting itself in physical<br />
symptoms may constitute a serious medical<br />
condition under <strong>the</strong> <strong>FMLA</strong>. Price v.<br />
City of Fort Wayne, 117 F.3d 1022 (7th Cir.<br />
1997). Price worked for <strong>the</strong> City of Fort<br />
Wayne for almost 10 years until she was<br />
terminated for excessive absences. Price<br />
submitted an affidavit from her doctor stating<br />
that she suffered from an assemblage of<br />
diagnoses including elevated blood pres-<br />
For The Defense ■ February 2013 ■ 41
Employment and Labor Law<br />
sure, hyperthyroidism, back pain, severe<br />
headaches, sinusitis, infested cyst, sore<br />
throat, swelling throat, coughing and feelings<br />
of stress and depression. Price’s doctor<br />
fur<strong>the</strong>r attested that Price came to his<br />
office in “an alarming condition,” she “was<br />
on <strong>the</strong> edge of a break-down, both physically<br />
and mentally,” and “<strong>the</strong>re was no way<br />
[that Price] could perform her job, due to<br />
The <strong>FMLA</strong>specifically<br />
allows an employer to<br />
question employees about<br />
requested absences<br />
to determine whe<strong>the</strong>r<br />
<strong>the</strong> <strong>FMLA</strong> applies.<br />
her mental and physical state, and… to<br />
attempt to continue to work in her condition<br />
would be seriously detrimental to her<br />
health.”<br />
The district court held that Price’s multiple<br />
diagnoses did not rise to <strong>the</strong> level of a<br />
serious health condition as a matter of law<br />
and granted a summary judgment to <strong>the</strong><br />
City of Fort Wayne. The Seventh Circuit<br />
reversed <strong>the</strong> district court’s grant of a summary<br />
judgment, holding that while such<br />
multiple diagnoses may not rise to <strong>the</strong> level<br />
of a serious medical condition as a matter<br />
of fact, such diagnoses were sufficient to<br />
survive a summary judgment.<br />
42 ■ For The Defense ■ February 2013<br />
Which <strong>FMLA</strong> Entitlement<br />
Causes <strong>the</strong> Most Problems?<br />
While Congress enacted <strong>the</strong> <strong>FMLA</strong> to<br />
attempt to balance <strong>the</strong> demands of <strong>the</strong><br />
workplace with <strong>the</strong> needs of families, certain<br />
bad apples have found opportunities<br />
to exploit <strong>the</strong> <strong>FMLA</strong> in <strong>the</strong> workplace. The<br />
<strong>FMLA</strong> has become <strong>the</strong> single largest source<br />
of uncontrolled absences and, thus, <strong>the</strong> single<br />
largest source of all <strong>the</strong> costs that those<br />
absences create: missed deadlines, late<br />
shipments, lost business, temporary help<br />
costs, and overworked staff.<br />
Even <strong>the</strong> DOL notes that <strong>the</strong> most serious<br />
<strong>FMLA</strong> problems arise with “intermittent<br />
leave” for which employees obtain<br />
certification that <strong>the</strong>y suffer ongoing medical<br />
conditions. While <strong>the</strong> original intent<br />
of intermittent leave was to accommodate<br />
employees with chronic ailments that<br />
might occasionally flare up and require<br />
minimal time, this type of leave has proved<br />
vulnerable to abuse. A National Association<br />
of Manufacturers survey revealed that<br />
more than half of <strong>the</strong> requests for intermittent<br />
leave were made ei<strong>the</strong>r on <strong>the</strong> day of<br />
<strong>the</strong> leave, after <strong>the</strong> leave was taken, or without<br />
any notice whatsoever. Moreover, <strong>the</strong><br />
employer survey respondents reported having<br />
to absorb significant operating costs in<br />
lost productivity and missed deadlines due<br />
to <strong>the</strong> intermittent leave. In addition to <strong>the</strong><br />
tangible losses such as unwanted overtime<br />
and loss of vacation, abused intermittent<br />
leave has additional intangible effects on<br />
productivity, morale, turnover, and business<br />
retention.<br />
How Can Employers Curb<br />
Employee <strong>FMLA</strong> Abuse?<br />
Given <strong>the</strong> very real medical problems<br />
that job- related stresses induce, as well as<br />
employers’ legitimate business concerns,<br />
employers should remain alert to ensuring<br />
<strong>FMLA</strong>- compliance while also protecting<br />
against <strong>FMLA</strong> abuse. An employer<br />
should know <strong>the</strong> leave “triggers” and recognize,<br />
based on <strong>the</strong> information that it has,<br />
when an employee’s absence may qualify as<br />
<strong>FMLA</strong> leave and ask for more information<br />
if appropriate. An employer should also<br />
first verify and confirm that an employee is<br />
eligible for <strong>FMLA</strong> leave. So, what are some<br />
suggested best practices when dealing with<br />
<strong>FMLA</strong> leave requests in general?<br />
Enforce company leave policies. An employer<br />
should work with managers to ensure<br />
that <strong>the</strong> company’s leave policies, including<br />
an <strong>FMLA</strong> policy, are current and uniformly<br />
enforced and ensure that managers are familiar<br />
with <strong>the</strong> <strong>FMLA</strong> paperwork. An employer<br />
must remain compliant with both<br />
federal <strong>FMLA</strong> laws and constantly changing<br />
state and o<strong>the</strong>r medical leave requirements.<br />
State law compliance is crucial for companies<br />
that have multiple locations. When in<br />
doubt, seek advice from outside counsel.<br />
Train management. Supervisors do not<br />
need to be experts on <strong>the</strong> <strong>FMLA</strong> and comparable<br />
state sick and medical leave laws,<br />
but <strong>the</strong>y do need to understand <strong>the</strong> basics<br />
of <strong>the</strong> law, including that employers are<br />
prohibited from interfering or retaliating<br />
against employees who take <strong>FMLA</strong><br />
leave. Employers should also be aware that<br />
<strong>the</strong> provisions of <strong>the</strong> <strong>FMLA</strong> arm employees<br />
with two causes of action <strong>the</strong>y can<br />
bring against an employer (1) an interference<br />
claim which makes it “unlawful for<br />
any employer to interfere with, restrain,<br />
or deny <strong>the</strong> exercise of or <strong>the</strong> attempt to<br />
exercise” any right provided by <strong>the</strong> <strong>FMLA</strong>,<br />
see 29 U.S.C. 2615(a)(1); and (2) a retaliation/discrimination<br />
claim found in 29<br />
U.S.C. 2615(a)(2) and 2615(b) of <strong>the</strong> statute<br />
which prohibits employers from discharging<br />
or discriminating against employees<br />
for “opposing any practice made unlawful”<br />
by <strong>the</strong> <strong>FMLA</strong>. Courts analyzing <strong>the</strong> merits<br />
of a retaliation/discrimination claim<br />
rely on <strong>the</strong> traditional anti- discrimination<br />
burden- shifting standards as articulated<br />
in McDonnell Douglas and Price Waterhouse.<br />
However, analysis of an interference<br />
claim does not require discriminatory<br />
intent. Ra<strong>the</strong>r, a plaintiff alleging an interference<br />
claim generally need only show that<br />
he or she was entitled to benefits under <strong>the</strong><br />
<strong>FMLA</strong> and was denied <strong>the</strong>m.<br />
Put it in writing. Require employees to<br />
submit a leave request form for all absences.<br />
When an employee calls in sick or requests<br />
a day off for any reason, require a written<br />
request. While a covered employer cannot<br />
prohibit verbal <strong>FMLA</strong> leave requests,<br />
requiring an employee to followup by submitting<br />
a written request can deter abuse.<br />
An employer has a right to question<br />
employees requesting <strong>FMLA</strong> leave. When<br />
faced with leave requests an employer<br />
should ask all necessary and relevant questions,<br />
especially when an employee’s reason<br />
for requesting <strong>the</strong> leave is unclear.<br />
The <strong>FMLA</strong> specifically allows an employer<br />
to question employees about requested<br />
absences to determine whe<strong>the</strong>r <strong>the</strong> <strong>FMLA</strong><br />
applies. Consider preparing a standard list<br />
of questions for supervisors to ask employees<br />
seeking <strong>FMLA</strong> leave on <strong>the</strong> basis of purported<br />
illness. An employee who chooses<br />
not to respond to reasonable questions<br />
from an employer about not only <strong>the</strong> need<br />
for time off, but also <strong>the</strong> nature of <strong>the</strong> need<br />
for leave and <strong>the</strong> timing and duration of <strong>the</strong><br />
absence, may lose his or her right to <strong>FMLA</strong><br />
protection.<br />
<strong>Stress</strong> <strong>Leave</strong>, continued on page 82
<strong>Stress</strong> <strong>Leave</strong>, from page 42<br />
Require medical certification. One of<br />
<strong>the</strong> best tools that an employer has in <strong>the</strong><br />
quest to combat <strong>FMLA</strong> abuse is <strong>the</strong> medical<br />
certification form. <strong>Under</strong> <strong>the</strong> <strong>FMLA</strong>,<br />
an employer is permitted to obtain necessary<br />
medical information to determine<br />
whe<strong>the</strong>r an employee suffers from a serious<br />
health condition, thus qualifying him<br />
or her for <strong>FMLA</strong> leave. If <strong>the</strong> employee<br />
does not provide <strong>the</strong> medical certification,<br />
<strong>the</strong>n <strong>the</strong> absence will not be considered<br />
<strong>FMLA</strong> leave.<br />
Use clarification or recertification mechanisms.<br />
If <strong>the</strong> information provided in a<br />
medical certification is insufficient because<br />
it is vague, ambiguous, or o<strong>the</strong>rwise nonresponsive,<br />
an employer has a right to require<br />
that <strong>the</strong> employee provide additional information.<br />
An employee who refuses to allow<br />
<strong>the</strong> employer to seek clarification may be<br />
denied <strong>the</strong> leave.<br />
Consider obtaining permission to contact<br />
an employee. The <strong>FMLA</strong> generally permits<br />
an employer to request periodic reports on<br />
<strong>the</strong> employee’s status and intent to return<br />
to work and recertifications. Never<strong>the</strong>less,<br />
an employer must fight <strong>the</strong> tendency<br />
to take contact with an employee to <strong>the</strong><br />
extreme. Employers should remember that<br />
<strong>FMLA</strong> leave is indeed unpaid leave, and<br />
so communications with an employee on<br />
<strong>FMLA</strong> leave may entitle that employee to<br />
paid wages. Accordingly, employers should<br />
centralize and monitor communications<br />
and make sure that such communications<br />
are limited. An employer might even consider<br />
securing an employee’s authorization<br />
to contact him or her during his or her<br />
<strong>FMLA</strong> leave regarding work- related issues.<br />
Consider creative, preventative strategies<br />
to curb abuse. Employers may also<br />
consider creative approaches to combat<br />
abuses still within <strong>the</strong> parameters of <strong>the</strong><br />
<strong>FMLA</strong>. For instance, employers might<br />
remind or request that employees schedule<br />
<strong>the</strong>ir medical treatments outside of <strong>the</strong><br />
work day. Employers may also simply add<br />
“ability to handle stress” to a specific position’s<br />
job description. An employer could<br />
even transfer an employee to ano<strong>the</strong>r position<br />
if <strong>the</strong> intermittent leave is too disruptive<br />
to <strong>the</strong> position.<br />
Although a tricky maze, employers<br />
can successfully navigate <strong>the</strong> <strong>FMLA</strong> and<br />
ensure that <strong>the</strong>y are appropriately administering<br />
leave polices for <strong>the</strong>ir genuinely<br />
stressed-out employees even while protecting<br />
against <strong>FMLA</strong> abuse.<br />
82 ■ For The Defense ■ February 2013