Stress Leave Under the FMLA - Greenberg Traurig LLP

More documents

Recommendations

Info

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 jobrelated 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 jobrelated 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
Page 1 and 2: Employment and Labor Law You’re S
Page 3: Employment and Labor Law employers.

Stress Leave Under the FMLA - Greenberg Traurig LLP

Create successful ePaper yourself

Delete template?

Save as template?