Stress Leave Under the FMLA - Greenberg Traurig LLP

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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
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