An employer has four choices in determining the 12 month period in which the employee is entitled to 12 weeks of FMLA leave.^[4]  The employer may designate (1) the calendar year, (2) any fixed 12 month leave year including a fiscal year or the year starting on the employee’s anniversary date, (3) a 12 month period measured forward from the date any employee’s first FMLA leave begins or (4) a  rolling 12 month period, measured backward from the date the employee uses the FMLA leave.  Once the employer has selected the 12 month period it intends to use, it is important for the employer to be consistent in applying that method of determining leave eligibility.  It is equally important that this method be disseminated to employees.  At a minimum dissemination should be in the handbook.  Where the employer has not selected a method, the period that is most advantageous to an employee in a given situation must be applied.^[5]  An employer’s failure to notify the employees of the chosen method may result in this rule being applied.^[6]

 

The FMLA does not require an employer to pay the employee during the allowable leave period.^[7]  However, the employee may elect to use accrued paid vacation leave, personal leave or family leave that the employer ordinarily provides as part of the FMLA leave.^[8] Alternatively the employer may require the employee to use these leaves during the 12 week leave period.  Accrued paid vacation, personal or family leave may be substituted by the employee for unpaid FMLA leave if the leave is for the birth, placement of a child for adoption or foster care, or care of a close family member with a serious health condition.  Where the leave is for care of a family member with a serious health condition or for the employee’s own serious health condition, the employee may elect to use accrued paid  vacation leave, personal leave or medical or sick leave.^[9]

 

Which Employers and Employees are Covered by the Act

 

To be covered by the Act, an employer must be engaged in commerce or in an industry affecting commerce and must employ 50 or more employees for each working day of 20 or more calendar work weeks in the current or proceeding calendar year.  The Act gives the same broad definition to “employ” as the Fair Labor Standards Act.  The term employ includes “to suffer or permit to work.”  The Secretary of Labor (“The Secretary”) is vested with the power to enforce the

FMLA.  According to the regulations issued by the Secretary^[10] the payroll method is used in determining the number of employees.  Any employee whose name is on the employer’s payroll in any calendar week will be considered employed on each working day of that week and thus must be counted even if the employee does not receive compensation.^[11]  Employees on paid or unpaid leave including FMLA leave, leaves of absence or disciplinary suspension are counted for determining the number of employees of the employer under the FMLA as long as the employer has a reasonable expectation that they will return to active employment.^[12]  Employees on lay-off are not counted.  Part-time employees are counted the same as full-time employees.  They are considered to be employed each working day of any calendar week they are maintained on the payroll.

 

The FMLA applies to public agencies without regard to the number of employees employed.  A public agency is one that is so defined in §3(x) of the Fair Labor Standards Act.^[13] The government of the United States, of a state or political subdivision of a state or of any agency of the United States, state or political subdivision of a state are public agencies. 

 

To be eligible for the leave provisions of the Act an “eligible employee” must have worked at least 12 months for the employer from whom the leave is requested.    The 12 months need not be consecutive months.  If an employee is on the payroll for any part of a week, the week counts as a week of employment.^[14]   The employee must also have worked at least 1,250 hours during the preceding 12 month period. In determining the number of hours worked, the same rules are applied as determining hours worked under the Fair Labor Standards Act.  In other words,  work “off the clock” which the employer suffers or permits the employee to work counts as hours worked.  However, periods when the employee is not actually working are not counted as part of the 1,250 hours.  Thus, the employee does not get hours credit for paid sick leaves, vacations or holidays.  See Robbins v. Bureau of National Affairs.^[15] The determination of the number of hours worked and whether the employee has worked for at least 12 months is made as of the date leave commences.  However, if the employee works at a work site that employs less than 50 employees and the total number of employees employed by the employer within 75 miles of the work site is less than 50, the employee is not eligible for leave under the Act.   

 

 

Conditions Giving Rise to the Right to Family and Medical Leave

 

 There are four circumstances under which an employee is entitled to leave under the Act:

 

1.                  To care for a son or daughter (within the 12 month period following the child’s birth.^[16]

 

2.         Because of the placement of a son or a daughter with the employee for adoption or foster care within 12 months of such placement of the child.^[17] 

3.         To care for the employee’s close relative, i.e. a spouse, son, daughter or parent, who has a serious health condition.

 

4.         Because of a serious health condition that makes the employee unable to perform the functions of the employee’s position.

 

The statute broadly defines a son or daughter as a biological, adopted or foster child, a stepchild, a legal ward or child for whom the employee stands in loco parentis.  The child must either be under 18 years of age or incapable of self-care because of a mental or physical disability.  One is incapable of self-care if the individual requires active assistance or supervision to provide daily self-care in three of more of the “activities of daily living” or  “instrumental activities of daily living.”^[18]    The activities of daily living include caring appropriately for one’s grooming and hygiene, bathing, dressing and eating.  Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence and using telephones and directories.  Physical or mental disability means an impairment that substantially limits one or more of the major life activities of the individual as that term is described in the federal regulations relating to the Americans with Disabilities Act (“the ADA”)^[19].

 

A parent within the meaning of the statute is a biological parent or an individual who stood in loco parentis to the employee when the employee was a son or daughter.   Persons who are in loco parentis are those who have day-to-day responsibilities to care for and financially support a child.^[20]  A biological or legal relationship is not necessary.  A spouse is a husband or wife as defined or recognized under state law for purposes of marriage in the state of the employee’s residence.^[21]

 

What is a Serious Health Condition ?

 

           A serious health condition within the meaning of the FMLA includes an illness, injury, impairment or physical or mental condition that involves inpatient care.   Also defined as serious health conditions are certain conditions where there is continuing treatment by a health care provider.  Among these are “A period of incapacity of more than three consecutive days (i.e. inability to work, attend school or perform other regular activities due to the serious health conditions, treatment therefore or recovery therefrom)...”^[22]  After more than three days incapacity, follow up care may also constitute a serious health condition.  This is the case where there is  treatment by a health care provider or one under the supervision of a health care provider on at least two occasions or treatment by a health care provider on at least one occasion followed by a regimen of continuing treatment under the supervision of the health care provider.^[23]  The regulation delineating what constitutes a serious health condition is found at 29 CFR §825.114.  It is a good practice to consult that regulation when there is any question as to whether a serious health condition exists.  

 

Treatment within the meaning of the FMLA does not include routine physical, dental or eye examinations.  It does however include “...examinations to determine if a serious health condition exists and evaluation of the condition.” ^[24]

 

Periods of incapacity due to pregnancy or for pre-natal care are also included under the definition of serious health conditions.^[25]  FMLA leave is also required for periods of incapacity or treatment of a chronic serious health condition which requires periodic visits for treatment by a health care provider, which continues over an extended period of time and which may cause episodic continuing periods of incapacity.^[26]  Examples of the latter type of incapacity include asthma, diabetes and epilepsy.

 

The regulations also include under the definition of a serious health condition certain incapacities for which treatment may not be effective where the employee or family member is under the continuing supervision of a health care provider.^[27]  Incapacity due to Alzheimer’s disease or a severe stroke or the terminal stages of a disease would be included in this definition.

 

Periods of absence for multiple treatments by a health care provider or on referral by a health care provider may also be serious health conditions.^[28] Examples would be restorative surgery after an accident or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days if it were not treated.  Some examples of the latter are chemotherapy or radiation treatment for cancer, physical therapy for severe arthritis and dialysis for kidney disease. 

 

Cosmetic treatments such as plastic surgery are not serious health conditions unless inpatient hospital care is required or unless complications develop.^[29]  The regulations exclude from the definition of serious health condition, the common cold, flu, earaches, upset stomach, minor ulcers,  headaches other than migraine, routine dental or orthodontic problems and periodontal disease unless complications develop.  Under some circumstances, substance abuse may be regarded as a serious health condition.^[30]  Leaves that are required for absence due to the employee’s use of the substance rather than for treatment are not serious health conditions. 

 

An employee will be considered unable to perform the functions of the position where the health care provider finds that the employee is unable to perform any one of the essential functions of the employee’s position within the meaning of the Americans with Disabilities Act., (the “ADA”).^[31] What constitutes an essential function of a job can be a highly debated factual issue.  Employers should consider formulating job descriptions.  The descriptions may help when the issue of what is an essential function comes up under the FMLA or the ADA.  Absence from work to receive medical treatment for a serious health condition is considered being unable to perform the essential functions of the position during the absence for treatment.

 

Leave because of a need to care for a close family member must be granted whether it encompasses either physical or psychological care.^[32]  Such a need exists because of a serious health condition  where a family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety or is unable to get to the doctor without assistance.  The need for care of a close family member may also include providing psychological comfort which would be beneficial to the family member.^[33]

 

Intermittent Leave and Leave on a Reduced Leave Schedule

 

Intermittent leave or leave on a reduced leave schedule may only be taken if there is a medical need for such a leave which can be best accommodated through an intermittent or reduced leave schedule.  29 CFR §825.117(a).  Intermittent leave or a reduced leave schedule may be taken for the birth or placement of a child for adoption or for foster care only if the employer agrees to permit it.  Intermittent leave is leave taken in separate blocks of time due to a single qualifying reason.^[34]  A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per week or per work day.

 

Intermittent leave may be appropriate where it is necessary for periodic medical appointments or treatment such as chemotherapy.  A pregnant employee may take intermittent leave for prenatal examinations or for her own condition such as severe morning sickness.  A reduced leave schedule may be taken by an employee who is recovering from a serious health condition and is not yet able to work a full work schedule.    

 

An employee may take intermittent leave or leave on a reduced leave schedule in any time increment that is necessary.^[35]   The employer may not require the employee to take more FMLA leave than is necessary for the circumstances requiring the leave. 

 

Employees are required to attempt to schedule their intermittent leave or reduced schedule leave in a manner so as not to disrupt the employer’s operations.  Where an employee takes an intermittent or reduced schedule leave, the employer may assign the employee to an alternative position with equivalent pay and benefits temporarily, where it better accommodates the employee’s schedule.^[36]

 

When an employee takes an intermittent or reduced leave schedule, the employee may only be charged with the amount of leave actually taken.^[37]  If an employee ordinarily works five days a week and takes one day off, that counts as one-fifth of a week of FMLA leave.  If that employee worked an eight hour day and took four hours off, the employee would only be charged with one-tenth of a week of FMLA leave.  Part-time employees entitlements are determined on a pro rata or proportional basis.  For example, when an employee who ordinarily works 30 hours per week works only 20 hours on a reduced leave schedule, the ten hours of leave would count as one-third of a week of FMLA leave.  Where an employee’s schedule varies from week to week, a weekly average of the hours worked over the 12 week period prior to the beginning of the leave is used to calculate the employee’s normal work week.

 

Employers’ and Employees’ Obligations

 

Where the need for leave is foreseeable based on an anticipated date of the event, the employee must provide the employer no less than 30 days notice.  If the qualifying event is to take place in less than 30 days, the employee is obligated to give the employer as much notice as is practicable.  No specific form is required for the notification.  It may be oral.  The employee does not have to specifically invoke rights under the FMLA. The employee merely needs to state that leave is needed for some reason such as birth or adoption, care of a close family member or personal health reasons.  The employer has an obligation to inquire further to determine if the leave is FMLA eligible.  The employee has an obligation to furnish the employer sufficient information to enable the employer to determine whether the leave qualifies under the FMLA.  Where the leave is FMLA eligible, the employer must designate it as such.  The employer must give notice to the employee of whether or not the leave is allowable for FMLA purposes.

 

When an employer learns that an employee is taking vacation or other paid leave for FMLA eligible purposes the employer may designate it as FMLA leave.  Notice that the employer has so designated the leave as FMLA leave must be given within two business days absent extenuating circumstances.^[38]   The employer’s failure to advise the employee of the designation can have serious consequences.   For example, failure to promptly notify the employee that the leave is not being allowed as FMLA leave may later prevent the employer from asserting that the employee was not eligible.^[39]

 

Where an employee seeks leave to care for a close family member with a serious health condition or for the employee’s own serious health condition, the employer may require a certification by the health care provider of the eligible employee or the employee’s relative.  The employer may also require an eligible employee to obtain a re-certification from time to time on a reasonable basis.  Where an employer requires a certification the employee must be notified of that fact in advance.^[40]  At a minimum, a certification must provide the following information:

 

1.         The date on which the serious health condition commenced.

 

2.         The probable duration of the condition.

 

3.         The appropriate medical facts within the knowledge of the health care provider regarding the condition.

 

4.         If the leave is for the care of a close relative the certification must contain a statement that the employee is needed to care for the relative.

 

5.         If the leave is due to the employee’s own serious health condition, the certification must state that the employee is unable to perform the functions of his or her position.^[41]

 

 The FMLA provides that a health care provider is a doctor of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctor practices.  The statute also allows the Secretary of Labor to designate as health care providers other persons providing health care services.  The Secretary has designated a number of people and professions as health care providers where they are licensed by state law and by the laws of their respective states.  The Secretary’s designation includes podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers and Christian Science practitioners who are listed with the First Church of Christian Scientists in Boston, Massachusetts.  The Secretary has also designated any health care provider from whom the employer’s group health plan will accept a certification of the existence of a serious health condition to substantiate a claim for benefits.^[42]

 

Where leave is requested to care for a close relative, the certification must contain a statement that such leave is necessary for the person’s care and will assist in the person’s recovery.   Where intermittent leave or leave on a reduced schedule is needed for care of a close family member the certification must indicate the expected duration and schedule of the intermittent leave or reduced leave schedule.^[43]

 

Where intermittent leave or leave on a reduced leave schedule is requested for medical treatment, the certification must provide an estimate of the probable number of treatments and interval between treatments if known It must also indicate the period required for recovery.^[44]

 

If the employer has reason to doubt the validity of the certification provided by the employee, the employer may require, at its own expense, that the employee obtain a second opinion from another health care provider who the employer approves or designates.^[45]    Such a health care provider may not be one who is employed on a regular basis by the employer.  Where the second opinion conflicts with the opinion of the employee’s health care provider, the employer may require at its own expense that the employee obtain an opinion from a third health care provider which the employer and employee jointly designate or approve.  Where an opinion is obtained from a third health care provider regarding the certified information, that opinion is binding on the employer and employee. 

 

Before permitting an employee to return from leave for a serious health condition, the employer may require a certification from the employer’s health care provider that the employee is able to resume work providing there is no bar to such a requirement under a valid state law, local law or collective bargaining agreement relating to return to work of employees.  The employer may only require a certification of ability to return to work where it has a uniform policy of doing so.^[46]  Employers are not prohibited by the Act from periodically requiring the employee to report on his or her status and intention to return to work.^[47]

 

Employment and Benefit Protection

 

An employee who takes FMLA leave must be returned by the employer to the position which the employee held prior to the commencement of the leave or to an equivalent position without loss of benefits, pay or other terms or conditions of  employment.^[48]  The employer is not permitted to require the forfeiture of any benefits accrued by the employee prior to the commencement of the leave.  However, the employer is not required to allow the employee to accrue seniority during the leave or to receive any right, benefit or position that the employee would not have received if the employee had not taken leave.^[49]

 

In some circumstances, the employer may be relieved of restoring employment  to certain highly compensated or “key” employees. 29 U.S.C. §2614(b). For the employee to be exempt from restoration, the individual must be among the highest paid ten percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed.  Before the employer may deny restoration, the situation must fulfill three prerequisites:

 

1.         The denial of restoration must be necessary to prevent substantial and grievous economic injury to the operations of the employer.

 

2.         The employer must notify the employee of the intent to deny restoration as soon as the employer determines it would suffer injury as a result of the leave.

 

3.         Where an employee who is already on leave is notified that the employer does not intend to restore the employee and that employee elects not to return to work after receiving the notice, restoration is not required.

 

While an eligible employee is on leave, the employer is required to continue coverage for the employee under any group health plan the employer maintains.  The coverage must be maintained at the same level and under the same conditions that it would have provided the employee if the employee were not on leave.  If an employee elects not to retain group health plan coverage while on FMLA leave, the employer  must reinstate the employee to the plan without excluding pre-existing conditions or requiring a qualifying period, or a physical examination.^[50]

 

If an employee on FMLA leave is more than 30 days late in paying the employee’s contribution for health insurance, the employer is no longer obligated to maintain that insurance.  However, before dropping coverage, the employer must provide the employee written notice at least 15 days before coverage is to cease.  The notice must advise the employee that coverage will be dropped on a specified date at least 15 days after the date of the notice unless payment is made.  If an employer has a policy with a greater grace period than that allowed by the regulations the employer must apply the more lenient policy. ^[51]

 

If the employee fails to return after the leave to which the employee is entitled has expired, the employer may in some instances recover the premium that it paid for maintaining coverage during the leave.  The employer may not recover these sums if the employee fails to return due to the continuation, recurrence or onset of a serious health condition of the employee or of a covered close relative.  The employer may require certification from the health care provider  that the employee is unable to return to work because of a serious health condition.^[52]

 

Enforcement

 

Employers accused of violating the FMLA are subject to legal actions brought by employees on their own behalf as well as on behalf of other employees similarly situated.^[53]An employee may sue for damages and for equitable relief such as reinstatement to employment or promotion.  Suit may be filed in federal or state court.  Employees may recover any compensation or other employment benefits lost as a result of a violation.  If there has been no loss of compensation or benefits the employee may recover actual monetary losses sustained as a result of the violation, such as the cost of providing up to 12 weeks of care.  The lost wages are subject to interest at the prevailing rate plus an additional amount equivalent to the actual damages as liquidated damages.  If the employer is able to demonstrate that the violation of the Act was in good faith and that the employer had reasonable grounds for believing that it had not violated the Act, the court may eliminate the liquidated damages.  It can be expected that in most cases liquidated damages will be awarded.  In Nero v. Industrial Molding Corp.^[54] the court held that “[e]ven if a trial court is satisfied that an employer acted both in good faith and reasonably, it may still award liquidated damages at its discretion in any amount up to that allowed by 29 U.S.C. §216(b).” (Quoting Mireles v. Frio Foods, Inc. 899 F.2d 1407, 1416 n.8 (5^th Cir. 1990)).  The court reasoned that “Doubling the award is the norm under the FMLA ...”  An employee can not recover consequential damages such as expenses in connection with finding another job in an FMLA action. Nero v. Industrial Molding Corp., supra. 

 

The limitation period for bringing an action under the FMLA is two years from the date “...of the last event constituting the alleged violation for which the action is brought.”  Where the alleged violation is “wilful” the time limit is extended to three years.^[55]  These are the same as the limitation periods in the Fair Labor Standards Act.  Since most FSLA violations are found to be wilful,  it is likely that most violations of the FMLA will also be found to be wilful.  However in Moore v. Payless Shoe Source,Inc. ^[56] an FMLA action was held to be time barred where it  was filled more than two years but less than three years after an alleged violation.  The plaintiff’s failure to allege in her complaint that the violation was wilful defeated her right to argue that the longer limitation period was applicable.   

 

Posting and Notice Requirements

 

Regulations issued by the Secretary of Labor under the FMLA require covered employers to post a notice advising employees of their rights under that statute as well as to furnish more direct written notice.  Those covered employers who have employee handbooks are required to furnish employees with this information in the handbook.^[57]   The following is the minimal suggested information to put in the handbook:

 

The Federal Family and Medical Leave Act guarantees employees, under certain circumstances, up to 12 weeks of leave time during any 12 month period.  You may be eligible for an unpaid leave of absence of up to 12 weeks in one year for the following purposes:

 

·                     To care your own health condition that disables you from performing your job. 

 

·                     To care for a child, parent or spouse who is seriously ill.

 

·                     To provide parental care for a son or daughter within the first 12 months of the child’s birth.

 

·                     To provide parental care for a son or daughter who is placed with you for adoption or foster care within the first 12 months of the placement of the child.

 

While you are on leave you will be able to retain your medical coverage by paying your usual contributions. At the end of your leave, you will be reinstated to the same or an equivalent position unless your job has been eliminated or you are no longer able to perform your job.

 

If an extended continuous leave is not needed, you may be eligible for a reduced hour schedule or to take intermittent time off.

 

Contact [individual or individuals] for more information.

It is advisable to provide certain additional information.  Employees should be informed that the FMLA requires them to give 30 days notice of the need for FMLA leave or at least as much notice as is practicable.  Employers might also want to let their employees know that leave on a reduced leave schedule or intermittent leave is available where the serious health condition is best accommodated by these types of leave.   They might also be advised of their right to maintain benefits such as health insurance while on FMLA leave but that they are responsible for paying their contribution during that time.  An employee who waives health insurance is entitled to be readmitted into the plan without passing a physical examination upon return from leave.

 

 

LEAVE REQUIRED BY THE AMERICANS WITH DISABILITIES ACT ( THE “ADA”)

 

There will be occasions when an employee will be entitled to leave under the ADA.  When Congress enacted the ADA in 1990 it determined that “...the nation’s proper goals regarding individuals with disabilities are to assure equal opportunity, full participation, independent living, and economic self sufficiency to such individuals.”^[58]  Title I of the ADA deals with discrimination in employment.   It forbids an employer to:

 

“...discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”^[59] 

 

It is also illegal discrimination to limit, segregate, or classify applicants or employees “... in a way that adversely affects the opportunities or status of such applicant[s] or employee[s] because of the disability of such applicant[s] or employee[s].”^[60]

 

A “qualified person with a disability” is one who has the required skills, training or education  to perform a job in question “and who, with or without reasonable accommodation, can  perform the essential functions of such position.”^[61]  The essential functions “do[ ] not include the marginal

functions of the position.”^[62]  The employer’s judgement along with a written job description prepared by the employer before undertaking to fill a position are given weight as to what constitutes an essential function.^[63] 

 

The Equal Employment Opportunity Commission regulations define a “disability” as “... a physical or mental impairment that substantially limits one or more major life activities; ...a record of such an impairment...or being regarded as having such an impairment.”^[64]  A “physical or mental impairment” is a condition that affects any of the major body systems, “...a mental or physical disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”^[65]  A “major life activity...means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,  and working.”^[66]

 

In determining whether an individual is substantially limited in a major life activity the regulations take into consideration the severity of the impairment, its expected duration, and its long term impact.^[67]   A person is substantially limited in the major life activity of working if he or she is restricted from performing a broad range of jobs.   The inability to perform one particular job does not constitute a significant limitation in the major life activity of working.^[68]

 

Alcoholism is a protected disability under the ADA.  The ADA specifically allows employers to prohibit the use of alcohol and illegal drugs in the workplace^[69] and to require that employees not be under the influence of alcohol while at work.^[70]  An employer may also hold an employee who is alcoholic or who engages in the illegal use of drugs to the same standards of conduct and performance as other employees even if the employee’s deficiencies are related to alcoholism or illegal drug use.^[71]  However an employee must be allowed leave under the ADA and the FMLA for treatment of alcoholism

 

A highly significant requirement of the ADA is to make reasonable accommodations to “...to the known physical limitations of an otherwise qualified individual with a disability.”^[72]  Employers may not deny employment opportunities to otherwise qualified individuals because of the need to make reasonable accommodations.^[73] 

 

A wide variety of accommodations may be considered as reasonable.  They include modifications to the job application process, to the work environment, making the employers facilities accessible, job restructuring, part-time or modified work schedules, reassignment to a vacant position, and providing special equipment or modifying existing equipment.^[74]  On some occasions a leave for treatment or convalescence will be a reasonable accommodation.  The ADA does not require an indefinite leave.  The leave allowed for an accommodation should be consistent with the leaves allowed for workers compensation, pregnancy and illness. 

 

LEAVE UNDER THE PREGNANCY DISCRIMINATION ACT

 

By now employers are well that among the prohibitions in Title VII of the 1964 Civil Rights Act are discrimination in the terms, provisions and benefits of employment on the basis of gender.  Prior to the Supreme Court decision in General Electric Co. v Gilbert^[75] there was controversy over whether discrimination on the basis of pregnancy was sex discrimination.  The contention arose primarily in disputes over whether women were entitled to the same health and disability benefits for pregnancy as were all employees for other disabling conditions.  The plaintiff in Gilbert complained about the the company’s Weekly Sickness and Accident Insurance Plan which provided up to 60% of an employee’s earnings to employees who were totally disabled due to a non-occupational sickness or accident.  The court found that the employer’s non-occupational disability plan did not violate Title VII’s prohibition against sex discrimination by excluding coverage for pregnancy. . 

 

As a result of the Gilbert decision Congress passed the Pregnancy Discrimination Act (the “PDA”)^[76] in 1978 under which the meaning of discrimination “because of sex” or “on the basis of sex” included

 

... because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions [must] be treated for all employment-related purposes, including receipt of benefits under fringe benefits programs, as other persons not so affected but similar in their ability or inability to work...^[77]

 

Subsequent to the enactment of the PDA the Supreme Court in Newport News Shipbuilding & Dry Dock Co. v. The Equal Employment Opportunity Commision^[78] had occasion to consider the affect of that statute on benefits provided to employees’ spouses.  The plan in question provided less extensive benefits to wives of employees for hospital confinement for maternity than were allowed for non pregnancy related conditions.  The court found this to be unlawful discrimination against male employees as it gave less coverage to spouses of male employees than to spouses of female employees.  The Court also ruled in International Union UAW v. Johnson Controls^[79] that the employer could not bar women capable of child bearing from jobs that would expose them and their fetuses to potentially dangerous lead levels.

 

There have been no shortage of decisions involving the application of the PDA.  In Byrd v. Lakeshore Hospital^[80] the Federal Appellate Court for the Eleventh Circuit ruled that a hospital illegally discharged an employee for using otherwise available sick leave for her pregnancy related condition.  On the other hand in Spivey v. Beverly Enterprises, Inc.  D/B/A Boaz Health and Rehabilitation Center^[81] the court found that the employer did not violate the PDA by dismissing a nurses assistant who could not perform her job unassisted due to a 25 pound lifting restriction imposed by her pregnancy.  The court based its decision on the fact that the employer’s policy did not accommodate limitations due to illness or injury for any employee other than those injured on the job.  The court further observed that the PDA does not require preferential treatment for pregnant employees.  In Armindo v . Padlocker, Inc.^[82] the court held that the PDA was not violated where a pregnant employee was dismissed for excessive absenteeism where the employer’s  absenteeism policy was applied equally to non pregnant employees.  The court ruled that a pregnant employee does not have to be treated more favorably than a non-pregnant employee.  Nevertheless, an employer must bear in mind that pregnancy related conditions may entitle an employee to FMLA leave.  Additionally there may be circumstances where complications of pregnancy will be sufficiently severe that the employee will be entitled to accommodation under the ADA. 

 

 The application of the Pregnancy Discrimination Act should be considered when describing health and disability benefits in the employee handbook.   The explanation of those benefits should show that they will not be differentially applied to pregnant employees or the pregnant spouses of employees.  The application of the tardiness and attendance policy should also indicate how it will apply to pregnancy related absences.

 

TIME OFF AS A RELIGIOUS ACCOMMODATION

 

Another situation where an employer may be called upon to allow time away from work is when it is necessary to accommodate an employee’s religious beliefs.  The prohibition against religious discrimination in Title VII was clarified in the 1972 amendment to that statute which states:

 

The term “religion” includes all aspects of religious observance and practice, as well  as belief, unless an employer demonstrates that he is unreasonably able to accommodate an employee’s or prospective employee’s religious observance and practice without undue hardship on the conduct of the employer’s business.^[83]

 

Questions of religious accommodation seem to show up most frequently with requests from strict Sabbatarians whose religion forbids them to work on their Sabbath.  Many cases involve individuals whose beliefs require them to abstain from work from sundown on Friday until sundown on Saturday.  The Supreme Court dealt with this question in Transworld Airline, Inc. v. Hardison.^[84] The Court held that the employer did not have to violate the union seniority rights of other employees or incur more than a very minimal expense to accommodate an employee’s religious observance.  The employer was not required to pay other employees overtime to take the plaintiff’s Saturday shift. 

 

A case that indicates caution in determining whether an employee’s need for time off for religious purposes is Lake v. B.F. Goodrich Company.^[85]  There the employer tried several different means to accommodate the employee who was a foreman.  It attempted to operate on Satuday’s without a foreman but this resulted in numerous production problems.  It excused Lake from covering for absent foremen when it would interfere with his Sabbath observance.  On some Saturdays the company found substitutes for him.  The court found there was failure to reasonably accommodate Lake, placing emphasis on the fact that the employer ultimately required him to arrange for his own replacements. 

 

When faced with the question of allowing time away from work to accommodate an employee’s religious observance employers should carefully examine the surrounding circumstances.  Factors to consider include whether the individual works with others who have similar duties and is therefore not the only person available to perform the required work.  If the person is one of a very limited pool of employees with the skills or authority to assume responsibilities that are essential the employer is more likely to be able to insist on the employee’s working on the individual’s day of religious observance.  The employer should carefully consider the extent to which the functions it regards as essential are actually indispensable to the safe or profitable function of the business.  It is a good idea to engage in a dialogue with the employee to explore all possible resolutions of the problem and thereby avoid costly litigation.

 

MILITARY LEAVE

 

The Veteran’s Reemployment Rights Act^[86] (the “VRRA”), as amended by the Uniform Service and Reemployment Rights Act of 1994 (the “USERRA”), protects the rights of employees who are called to duty in the United States Armed Forces.  All employers are covered, regardless of size or number of employees.  Protection is given to reemployment rights and various employment benefits to persons on active duty as well as to reservists who are activated or required to be absent from their employment temporarily for training purposes. Rights under the VRRA are only available to those whose service is terminated under honorable circumstances.^[87]  It is important for employers have policies in place to fulfill potential obligations under the VRRM.  The handbook is a logical place to disseminate these policies. 

 

Employers may not refuse to hire, retain, promote or reemploy individuals because they have a potential service obligation, or who have performed or volunteered for military duty.^[88]  The VRRA also includes a non-retaliation provision that bars employers from taking adverse action against individuals who have asserted their rights under the act or who have assisted participated in asserting the rights of others.^[89]  Although the statute does not bar employers from taking any action that would have taken in the absence of an employee’s military service or obligation, there is a strict burden of proof on the employer who wishes to assert this as a defense to a VRRA claim.^[90] 

 

To protect his or her right to military leave without loss of seniority or longevity a covered individual must give advanced notice of the service, either orally or in writing, unless such notice is not possible due to military reasons.^[91]  An individual is eligible for rights under the VRRM only if his or her cumulative length of absences, including all prior absences, does not exceed five years.^[92]  The five year period may be extended under certain circumstances, such as where the person’s service is involuntarily extended or where the person is unable to obtain discharge papers through no fault of the covered individual. ^[93]  The period may also be extended for up to two years where required due to the individual’s convalescence from a service incurred injury or illness.^[94]

 

In order to be entitled to the VRRM right to reemployment the covered individual must make a timely application.  Where the absence is less than 31 days the individual must be notify the employer by the first scheduled work day after completion of sevice.^[95]  Where the absence is for more than 30 but less than 181 days an application for reemployment must be submitted no more than 14 days after completion of the period of service.^[96]  If the period of service exceeds 180 days the application for reemployment must be submitted to the employer no more than 90 days after the completion of the period of service.^[97]  

 

Upon return from military service of less than 91 days the covered individual must be returned to any position that he or she would have had but for the absence due to the service.^[98]    Thus if a person would have automatically received a promotion after a period of time that was included in the period of military service the individual must receive that position, unless the person is not qualified to fill that position.  In such a case the employer must make a reasonable attempt to qualify the individual. If after a reasonable attempt the individual is still not qualified the person must be returned to his or her former position. 

 

Where the absence exceeds 90 days  an employee must be returned a position that he or she would have held in the absence of having been absent for service.  An individual who is not be qualified for such a position, after reasonable efforts by the employer, must be assigned to a position of like pay, status and seniority.^[99]   Special consideration must be given an individual who, after more than 90 days of service, because of a service connected disability, is unable to return to the position he or she would have held if continuously employed.  The employer must make  reasonable efforts to qualify the individual for the positgion.  If after such efforts the individual is still not qualified for that position, the employer must employ  the individual in either a position of equivalent pay, status and seniority or in a position that is the nearest approximation to such a position in pay status and seniority.^[100] 

 

An employer who wishes to assert that accommodating or training and individual to meet it reemployment obligation would impose an undue hardship has the burden of proving that defense.^[101]

 

An employer may be relieved of the duty to reemploy one returning from service where its circumstances have changed to the extent that it would be impossible or unreasonable to do so or it would impose an undue hardship on the employer.^[102]  Additionally, an individual need not be reemployed if he or she was hired for a brief, non-recurrent period without a reasonbable expectation that the employment would continue for a significant period.^[103]  The employer who wishes to assert these defenses has the burden of proving them.^[104]

 

Upon return from service the covered employee is entitled to the same seniority rights and customary benefits of the employer as the individual would have had in the absence of the service.^[105]  Additionally the employee is entitled to a considerable measure of job security upon return.  The employee may not be discharged, except for good cause, within one year after returning to employment, if the employee has worked for the employer for more than 180 days prior to the military service.  Where the employee has worked for the employer between 30 and 180 days prior to service the period of protection is only 180 days.^[106]  While on leave the employee must be permitted to use paid vacation or leave time but the employer may not require the employee to do so.^[107]

 

Where an employer offers a health insurance plan it is obliged to allow the employee to maintain participation in the plan for up to a maximum of 18 months of military leave.^[108]  The employee can not be compelled to pay more than 102% of the full plan premium.^[109]  If health insurance is discontinued during the leave, upon return to employment it must be restored without any exclusion or waiting period.^[110]  The plan may, however, exclude service incurred illnesses or injuries. 

 

Where an employee on military leave is a participant in an employer pension plan the time spent on military leave must not be considered a break in service.^[111]  Upon return to work the duration of the leave must be considered as time worked under the plan’s coverage.  The employer is responsible for its contribution during such leave period.^[112]  The employee is entitled to credit only for those period where the employee makes the required participant contributions.^[113]  The employee must be given an extended period to make such contributions.  The period commences with the employee’s return to employment and continues for a duration that is three times the employee’s length of service

 

An employee who is aggrieved by a suspected denial of VRRA rights may file a complaint with the Department of Labor which will investigate the complaint.^[114]  Employee rights can be enforced in a suit brought by the Department of Justice or by a private suit brought by the employee.^[115]  The court may require the employer to comply with the statute and award lost wages as well as an additional amount in liquidated damages.^[116]  The claimant may also be awarded attorneys fees and litigation costs.^[117]  Costs may not be awarded against the claimant. 

 

Florida statutes also afford job protection to certain individuals called to military duty.  State, municipal and county employees who belong to the National Guard are entitled to leave of absence without loss of pay or benefits when on active duty providing the absence does not exceed 30 days at one time.^[118]  Reserve members may not “...be denied employment, retention in employment, or any promotion or advantage of employment” because of their military obligations.^[119]  Both private and public employers are subject to penalties for taking adverse employment action against members of the National Guard.^[120]  One who has been employed for at least one year who claims that this restriction has been violated may ask the Adjutant General to investigate the claimed violation.  If after investigation the Adjutant General certifies that there is probable cause to believe that there has been a violation the claimant may bring a civil action.