The Texas Prosecutor, March-April 2017, Vol. 47, Issue 1

I had a kid and disappeared for six weeks

What to do when an employee needs a leave of absence (like I did)

On October 6, I rushed out of the office with hardly a word to anyone. I had gotten “the call” from my wife. My son, William, was on his way into the world just a little bit earlier than expected. We’re all thankful that the skilled doctors at Trinity Mother Frances Hospital in Tyler were able to get my wife and son through the unplanned Caesarean section without any major complications, but it quickly became clear that my son would need to spend an indeterminate amount of time in the Neonatal Intensive Care Unit (NICU).
    Prior to William’s arrival, my elected, Mike Jimerson, and I had discussed how long I would be out. I had purposefully saved my two weeks’ worth of vacation days to use when William was born. I hadn’t planned to stay out longer than that. Mike, a father himself, knew everything might not go according to plan so, as a contingency, we discussed me “maybe” staying out a third week to help my wife and son get settled in.
    What we hoped would be a few days in the NICU turned into five. Those five days stretched into 10, then 15, before the doctors ultimately gave us the all-clear to go home after 17 grueling days in the hospital. I had missed three full weeks of work before my wife and I ever took William home. Then I missed another three weeks before I returned to the office the week of Thanksgiving. Luckily, by then, this extended leave of absence was foreseeable, and my office had a contingency plan in place in the event that I missed significant time.
    An employee’s need for a leave of absence will not always be so foreseeable. For that reason, it is important for prosecutor office managers to know when, for how long, and for what reason an employee might be legally entitled to a leave of absence. My hope is that this article will answer those questions and a few more.

Family and Medical Leave Act (FMLA)
Back in 1993, President Bill Clinton and Congress shared a mutual concern for the job security of American employees who found themselves suffering from a serious medical condition or needing to care for a sick relative or a new baby.1 Add a splash of Equal Protection concerns, and you have the recipe for the Family and Medical Leave Act (FMLA).
    President Bill Clinton signed the FMLA into law on February 5, 1993, with an effective date of August 5 that same year. The FMLA is codified in Title 29, Chapter 28 of the United States Code, and its express purpose is to balance the demands of the workplace with the needs of families, to promote the economic stability of families, and to promote national interests in preserving family integrity.2 The FMLA accomplishes this purpose by allowing employees to take reasonable leave for medical reasons, the birth or adoption of a child, and for the care of a child, spouse, or parent with a serious health condition.3

Eligible employees
There is a two-prong test to determine whether an employee is eligible for a leave of absence under FMLA. The employee must have been employed for at least 12 months and, during the previous 12 months, performed at least 1,250 hours of service.4 When calculating the hours worked, do not count vacation, paid time off, or sick time. Only hours actually spent in service to the employer count. Excluded from the definition of eligible employee is any employee of an employer who is employed at a worksite at which such employer employees fewer than 50 employees if the total number of employees employed by that employer within 75 miles of the worksite is less than 50.5 When calculating the number of employees, do not limit yourself to simply those individuals in your office. The number of employees, for purposes of the FMLA, will be the number of individuals employed by the county.
    If the topic of FMLA leave comes up during a conversation with an employee within your office, be sure to confirm his eligibility for leave before making any assertions or promises that he will get time off under the act. If an employer makes an honest mistake and tells someone he is an FMLA-eligible employee, he can be estopped from raising non-eligibility as a defense to suit if the employee reasonably relies on that representation and takes action to his detriment.6

Appropriate reasons for leave
There are five situations that entitle eligible employees to a leave of absence under FMLA. Regardless of which situation prompts the leave, the eligible employee is entitled to 12 workweeks of leave during a 12-month period.7

1. Birth of a child. The first situation addressed by the FMLA is probably the most common situation. An eligible employee is entitled to leave because of the birth of a child in order to care for the child.8 Equal Protection concerns definitely come into play here. This provision applies equally to male and female employees. In the case of male employees, take note that the law does not require the male employee be married to the mother, so unmarried fathers-to-be are still to be afforded leave under the FMLA if eligible. If both parents are employed by the same employer, the aggregate number of workweeks of leave to which they are both entitled is limited to 12.9

2. Adoption or foster care. On a similar note, the second situation allows eligible employees to take leave if a child is placed with them for adoption or foster care.10 There are two important things to note about the adoption/foster care situation. First, the age of the child being adopted or fostered doesn’t matter. The section applies to any minor child. Second, some courts and the U.S. Department of Labor have said that a formal legal relationship is not necessary,11 so an employee who takes on the day-to-day responsibility of caring for and financially supporting a minor child just might be eligible for FMLA leave. As with the birth of a child, if both adoptive parents are employed by the same employer, the aggregate number of workweeks of leave to which they are both entitled is limited to 12.12

3. Family with a serious health condition. The third situation allows eligible employees to leave when a spouse, child, or parent has a serious health condition.13 There are several important points to consider with respect to this third situation. First, since Obergefell v. Hodges,14 the term “spouse” will apply to same-sex couples in the same manner it applies to heterosexual couples. Next, if an employee requests FMLA leave to care for a child it must be 1) a minor child or 2) an adult child who is disabled for purposes of the American with Disabilities Act.15 If spouses are employed by the same employer and take leave to care for a sick parent,16 the aggregate number of workweeks of leave to which they are both entitled is limited to 12.17

4. An employee’s serious health condition. The fourth situation allows leave under FMLA when the employee herself has a serious health condition and is unable to perform her job functions.18 Obviously, this situation will apply when an eligible employee is unable to come to work at all; it may also arise when an employee can work but is not able to complete all the functions of her position.
    The biggest issue with respect to the third and fourth situations is what constitutes a serious health condition. According to the U.S. Department of Labor, the most common serious health conditions that qualify for FMLA leave are:
•    conditions requiring an over-night stay in a hospital or other medical care facility;
•    conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and that require ongoing medical treatment (either multiple appointments with a health care provider or a single appointment and follow-up care, such as taking prescription medication);
•    chronic conditions that cause occasional periods when you or a family member are incapacitated and require treatment by a health care provider at least twice a year; and
•    pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).19
    When an employee seeks FMLA leave for a serious health condition he suffers or because he needs to care for a family member suffering from a serious health condition, the employer may require certification from a health care provider.20 The request for certification must be in writing and must detail the employee’s specific obligation to provide certification and the consequences for failing to do so.21 Certification of a serious health condition is sufficient if it states:
•    the date on which the serious health condition commenced,
•    the likely duration of the condition,
•    appropriate medical facts about the condition within the knowledge of the health care provider, and
•    a statement that the employee is unable to perform his job functions.22
    If the certification is insufficient, an employer has a duty to inform the employee of the deficiency and provide him with a reasonable opportunity to cure it.23
    If, as an employer, you have reason to doubt the validity of the certification an employee offers, the FMLA provides for second opinions.24 The employer must pay for this second opinion, and the second evaluation can be performed by a health care provider the employer designates or approves.25 The health care provider designated by the employer cannot be employed on a regular basis by the employer.26 If the second opinion differs from the first, the statute says that the employer can pay for a third (!) opinion from a health care provider mutually agreed upon by the employer and employee.27 This third opinion will be the final one and will be binding on both the employer and employee.28
    Unlike in the first three situations, the statute does not prohibit a scenario where Employee A has a serious medical condition and needs 12 weeks of leave and Employee B, who is married to Employee A, needs 12 weeks of FMLA leave to care for her husband.

5. Active military duty. The fifth situation that qualifies for FMLA leave happens when an employee has a spouse, child, or parent who is on covered active duty (or has been notified about an impending order to covered active duty in any branch of the military).29 Under this provision, eligible employees may take leave for a qualifying exigency while the military member is on covered active duty, is called to covered active duty status, or has been notified of an impending call or order to covered active duty.30
    I’ve never had the great privilege to serve in any branch of the United States military, so the first time I read this, I had two questions. First, what exactly is “covered active duty?” “Covered active duty” for members of the Regular Armed Forces is a member’s duty during deployment with the Armed Forces to a foreign country.31 For members of the Reserve components of the Armed Forces (the National Guard and Reserves), covered active duty is a member’s duty during deployment with the Armed Forces to a foreign country under a call or order to active duty in a contingency operation.32
    I next wondered what is considered a qualifying exigency. Luckily, our good friends at the U.S. Department of Labor give guidance on the issue. The U.S. Department of Labor has identified nine broad categories of qualifying exigencies:
•    issues arising from the military member’s short notice deployment (i.e., deployment within seven or less days of notice). For a period of up to seven days from the day the military member receives notice of deployment, an employee may take qualifying exigency leave to address any issue that arises from the short-notice deployment.
•    attending military events and related activities. This is going to cover an expansive list of events. Think official ceremonies, programs, and informational briefings sponsored by the military or military service organizations.
•    certain childcare and related activities arising from the military member’s covered active duty. For example, arranging childcare in advance of a deployment or changing schools.
•    certain activities arising from the military member’s covered active duty related to care of the military member’s parent who is incapable of self-care. For example, meetings with hospice or social service providers.
•    making or updating financial and legal arrangements to address a military member’s absence while on covered active duty.
•    attending counseling for the employee, the military member, or the child of the military member when the need for that counseling arises from the covered active duty of the military member and is provided by someone other than a health care provider.
•    taking up to 15 calendar days of leave to spend time with a military member who is on short-term, temporary Rest and Recuperation leave during deployment. The employee’s leave for this reason must be taken while the military member is on Rest and Recuperation leave.
•    certain post-deployment activities within 90 days of the end of the military member’s covered active duty, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military, and addressing issues arising from the death of a military member, including attending the funeral.
•    any other event that the employee and employer agree is a qualifying exigency.33
    If the spouse, child, or parent of the employee receives a serious injury or illness that requires the employee to care for them, the employee will be entitled to 26 weeks of leave for the 12-month period.34 This is called military caregiver leave. An employee will not be allowed to have any more than 26 weeks of leave combined between ordinary FMLA leave and military caregiver leave.35

Structuring the leave of absence
The FMLA provides guidance on how the leave of absence should be structured. If an employee requests to take leave intermittently or on a reduced schedule, §2612(b) is the section that gives guidance on the issue.
    In general, leave taken as the result of a new birth or an adoption should not be taken by an employee intermittently or on a reduced schedule unless the employee and the employer agree otherwise.36 If your county has a policy manual, see what it says about FMLA leave. If employees in one department are allowed to take FMLA for a new baby or an adoption intermittently or on a reduced schedule, it could impact your department should a lawsuit ever arise out of an employee being denied intermittent leave.
    Leave taken because of an employee’s serious health condition or that of the employee’s child, spouse, or parent can generally be taken intermittently or on a reduced leave schedule when medically necessary.37 If an employee takes leave intermittently or on a reduced schedule, she will still be entitled to the full 12 weeks of leave annually.38 This situation is difficult on small prosecutors’ offices because, as mentioned before, you look at the total number of people employed by the whole county, not just the prosecutor’s office, for FMLA eligibility. The most rural county will likely have 50-plus employees scattered across its many departments, so it would be subject to the FMLA, even if the office losing an employee to FMLA leave has only three or four full-time people. A situation where intermittent or reduced leave is necessary can present itself in a number of different ways, such as for ailments such as a bad back, knee, or shoulder. Mental health issues could also give rise to a situation where an employee would need intermittent or reduced leave. Employers can require certification for intermittent or reduced leave that explains the medical necessity for intermittent or reduced-schedule leave.39
    If a person requests intermittent leave or a reduced leave schedule under the military care giver provision or when a parent, spouse, child, or the employee herself has a serious health condition (the third and fourth situations detailed above), and that is foreseeable based on planned medical treatment (e.g., recurring physical rehab appointments or blood work), the employer can require the employee to transfer to an available alternative position for which the employee is qualified and that 1) has equivalent pay and benefits and 2) better accommodates recurring period of leave than the employee’s regular position.40 For example, if a prosecutor assigned to a trial-intensive position requires intermittent leave to participate in physical rehabilitation sessions stemming from injuries suffered in an automobile accident, her intermittent absences could very well have a detrimental effect on your office’s ability to prepare and try cases before a jury. This provision would allow an employer to assign that prosecutor to a different position—intake, for example—that would be more accommodating to regular absences.

Salary and benefits while on leave
When an employee takes leave under FMLA, that leave is unpaid.41 Individual employers are free to pay employees for the leave they take under FMLA, but they are not required to. If an employer provides paid leave for fewer than 12 workweeks (or 26, if appropriate), the remainder of leave taken by the employee is unpaid.42 For example, if your county offers six weeks of paid maternity/paternity leave as part of its benefits package, an employee who takes 12 weeks’ leave under FMLA would get the benefit of the county’s paid leave for the first six weeks, and the remaining six weeks would be unpaid.
    What happens to eligible employees’ accrued vacation time and sick time when they take leave under the FMLA? The statute provides that an employee may elect or an employer may require an employee to substitute any accrued paid vacation leave, paid personal leave, or paid sick leave for any part of the employee’s leave under the FMLA.43 An employer is not required to provide paid sick leave or paid medical leave in any situation in which such employer would not normally provide such leave.44 I utilized this provision when I took leave for the birth of my son. My county doesn’t provide paternity or maternity leave as part of its compensation package, so to ensure that my pay was not interrupted by my leave of absence, I applied my accrued vacation and sick time to my FMLA leave. Had my county been so inclined, it could have required me to apply my accrued vacation and sick time to the leave to prevent me from taking unpaid leave under the FMLA and then, after the FMLA leave was over, take my accrued vacation time to extend my absence from the office. It is up to the employer to decide its policy on requiring employees to take accrued sick days or vacation time.
    Taking leave under the FMLA does not result in the loss of any employment benefit accrued prior to leave.45 However, the FMLA does not entitle any employee, upon being restored to his regular position, to the accrual of any seniority or employment benefits during any period of leave or any right, benefit, or position of employment other than that which they would have been entitled to if they hadn’t taken the leave.46
    During any leave, the employer shall maintain coverage under any group health plan in exactly the same manner as would have been provided if the employee had not taken the leave.47 The employer can recover the cost of the premium that the employer paid for maintaining coverage for the employee during any period of unpaid leave if 1) the employee fails to return to work after the period of leave has expired and 2) the employee fails to return to work for a reason other than a continuation, recurrence, or onset of a serious health condition that would entitle him to leave or other circumstances beyond his control.48 An employer may require employees who claim to be unable to return to work to provide certification by a health care provider.49

Restoration to position50
When an employee returns from FMLA leave, he is entitled to restoration to the position that he held when he left.51 Once the employee submits a statement from a health care provider that he is fit to return to work, the employer’s duty to reinstate him is triggered under the FMLA.52
    The employee’s right to reinstatement is not absolute. An employee isn’t entitled to return to his prior position if he would have been terminated or demoted regardless of whether he took FMLA leave.53 For example, assume that an employee has been repeatedly failing to report to work on time despite repeated admonitions. Because of this habitual tardiness and the employee’s failure to correct the behavior, his supervisor decides to terminate him, but before the supervisor informs the employee of his termination, the employee contracts a sudden but serious health condition and goes on FMLA leave. While on leave, the supervisor notifies the employee that he has been terminated—which will look horrible on paper and will probably get your office sued. It may even create at an inference of impropriety on the supervisor’s part.54 However, at trial the employee would bear the burden of proving that the employer’s reasons for terminating his employment were illegally motivated.55
    Alternatively, an employee may be restored to an equivalent position with the same benefits, pay, and other terms and conditions of employment.56 To be an equivalent position, the new position must be “virtually identical to the employee’s former position in terms of pay, benefits, and working conditions. … It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.”57 The opportunities for promotion and salary increase must be the same.58 Courts will even consider whether other employees view the new and old positions as equally desirable.59

Conclusion
As an employee who has benefited from the existence of the Family and Medical Leave Act, I can tell you that it can be a huge blessing to those who qualify for its protections. As an attorney who advises county officials on the FMLA’s administration in my county, I can tell you it can be an incredibly daunting piece of legislation. To administer it correctly, familiarize yourself with the many requirements placed on both employees and employers. Do yourself and your employees a favor: Stay informed about the requirements of the FMLA, administer it fairly, and don’t get sued.

Endnotes
1  29 U.S.C. §2601(a).

2  29 U.S.C. §2601(b).

3  29 U.S.C. §2601(b)(2).

4  29 U.S.C. §2611(2)(A).

5  29 U.S.C. §2611(2)(B)(ii). Admittedly, this exception is unlikely to apply to most county employees.

6  Minard v. ITC Deltacom Comms., 447 F.3d 352, 359 (5th Cir. 2006).

7  29 U.S.C. §2612(a)(1).

8  29 U.S.C. §2612(a)(1)(A).

9  29 U.S.C. §2612(f)(1)(A).

10  29 U.S.C. §2612(a)(1)(B).

11  Martin v. Brevard Cty. Pub. Schs., 543 F.3d 1261,1265-66 (11th Cir. 2008) held that an in loco parentis relationship was sufficient and that a biological or legal relationship was not necessary.

12  26 U.S.C. §2612(f)(1)(A).

13  29 U.S.C. §2612(a)(1)(C).

14  576 U.S. ____, 135 S.Ct. 2584 (2015) holding that marriage is a fundamental right guaranteed to same sex couples by both the Equal Protection Clause and Due Process clause.

15  Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 587 (6th Cir. 2007).

16  Important note: The statute specifically says “sick parent” under subsection C, despite the fact that subsection C also covers sick spouses and children.  I was unable to locate a case that provided a clearer interpretation of this subsection.  For that reason, I would be leery of recommending someone limit a set of spouses to just 12 weeks combined if they were caring for someone other than a parent.

17  29 U.S.C. §2612(f)(1)(B).

18  29 U.S.C. §2612(a)(1)(D).

19  https://www.dol.gov/whd/fmla/fmla-faqs.htm. Retrieved on 1/30/2017.

20  29 U.S.C. §2613(a).

21  Branham v. Gannett Satellite Info. Network, Inc., 619 F.3d 563, 572 (6th Cir. 2010).

22  29 U.S.C. §2613(b)(1)-(3), (5). When the employee is taking leave to care for a family member, the employee will need a statement from a healthcare provider that states the employee must care for a son, daughter, spouse, or parent and the estimated amount of time needed to care for the family member. 29 U.S.C. § 2613(b)(4)(A).

23  Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 579 (6th Cir. 2007).

24  29 U.S.C. §2613(c).

25  29 U.S.C. §2613(c)(1).

26  29 U.S.C. §2613(c)(2).

27  29 U.S.C. §2613(d)(1).

28  29 U.S.C. §2613(d)(2).

29  29 U.S.C. §2612(a)(1)(E).

30  Id.

31  https://www.dol.gov/whd/regs/compliance/ whdfs28mc.pdf. Retrieved on 1/30/2017.

32 Id.

33  https://www.dol.gov/whd/regs/compliance/ whdfs28mc.pdf. Retrieved on 1/30/2017.

34  29 U.S.C. §2612(a)(3).

35  29 U.S.C. §2612(a)(4).

36  29 U.S.C. §2612(b)(1).

37  Id.

38  Id.

39  29 U.S.C. § 2613(b)(5)-(7).

40  29 U.S.C. §2612(b)(2).

41  29 U.S.C. §2612(c). Important note: Many employees in your office will be exempt employees under the Fair Labor Standards Act (FLSA). If one of those exempt employees takes unpaid leave under the FMLA, his status as an exempt employee under the FLSA will not be affected.

42  29 U.S.C. §2612(d)(1).

43  29 U.S.C. §2612(d)(2)(A)-(B). Please note that this is somewhat of a simplification of the statute’s requirements. The statute differentiates between FMLA taken because the employee himself is suffering from a serious health condition and the other provisions. Consult the statute for a more detailed explanation.

44  29 U.S.C. §2612(d)(2)(B).

45  29 U.S.C. §2614(a)(2).

46  29 U.S.C. §2614(a)(3)(A)-(B).

47  29 U.S.C. §2614(c)(1).

48  29 U.S.C. §2614(c)(2).

49  29 U.S.C. §2614(c)(3). Please consult this section for more specific detail regarding certification.

50  There is an exemption to the employer’s obligation to reinstate certain highly compensated employees found in 29 U.S.C. §2614(b). Please consult this section if you are dealing with an employee who is among the highest paid 10 percent of employees within 75 miles of the facility where the employee is employed.

51  29 U.S.C. §2614(a)(1)(A).

52  Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1004(6th Cir. 2005).

53  Simpson v. Office of the Chief Judge of the Circuit Ct. of Will Cty., 559 F.3d 706, 712 (7th Cir. 2009).

54  Id.

55  Id. See also Moorer v. Baptist Memorial Health Care Sys., 398 F.3d 469, 488-89 (6th Cir. 2005).

56  29 U.S.C. §2614(a)(1)(B).

57  Smith v. East Baton Rouge Parish Sch. Bd., 453 F.3d 650,651 (6th Cir. 2006).

58 Id.

59 Id.