The federal Family and Medical Leave Act of 1993 (“FMLA”) was enacted in 1993 to allow eligible employees to take unpaid leaves of absence without risking their job security. Although the statute allows up to a total of twelve weeks of leave, it also provides “[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee. . . leave . . . may be taken intermittently or on a reduced leave schedule when medically necessary.” 29 U.S.C. § 2612(a)(1) – (b)(1).

In recent years, two aspects of the FMLA have become a source of increasing concern for employers: determining what constitutes a “serious health condition” within the meaning of the statute, and defining an “eligible employee.” Because the terms “serious health condition” and “eligible employee” have not been clearly defined, a potential for abuse exists. Some employers have noted a surge in employees claiming FMLA leave, based on “serious health conditions,” on Fridays and Mondays in the summer. Others, noting FMLA leaves based on comparatively minor ailments, complain that the FMLA is becoming a “‘cough-and-cold’ statute.”

What does the FMLA mean by a “serious health condition”? Courts have offered inconsistent guidance on this question. In general, judges have found that unless complications arise, the common cold, routine dental or orthodontia problems, acne treatments, plastic surgery, nonmigraine headaches, ear aches, upset stomach and minor ulcers do not qualify as serious health conditions under the FMLA. On the other hand, the qualification “unless complications arise” implies that any of these ailments could qualify as a serious health condition supporting FMLA leave if an individual is severely affected by such a condition. Of course, identifying complications that are severe enough to support FMLA leave on the basis of a generally mild underlying condition can itself be a difficult endeavor and can lead to seemingly inconsistent results. For example, courts have disagreed on whether symptoms associated with the flu constitute a serious health condition within the meaning of the FMLA.

Another area that has created uncertainty is what constitutes an “eligible employee” under the FMLA. The FMLA defines an “eligible employee” as someone who has been employed “for at least 12 months by the employer with respect to whom leave is requested” and “for at least 1,250 hours of service with such employer during the previous 12-month period.” § 2611(2)(A). Recently, in Rucker v. Lee Holding Co., d/b/a Lee Auto Malls, the U.S. Court of Appeals for the First Circuit considered the issue of whether an employee has to work 12 months consecutively to be eligible for leave. The plaintiff in Rucker worked as a car salesman for a dealership for five years, then had a five-year break in service. He rejoined the dealership and worked more than 1,250 hours over a period of approximately seven months after he returned. The dealership terminated the plaintiff ’s employment after he missed 13 days of work because of a ruptured disc. After the plaintiff sued, the District Court granted the employer’s motion to dismiss, finding that the plaintiff ’s prior service did not count toward the 12-month requirement. The court reasoned that the applicable DOL regulation provides for “brief interruptions in an employee’s attendance,” but makes “no allowance for an employee who severs all ties with the employer for a period of years.”

On appeal, the First Circuit reversed, and found that the employee was eligible for coverage under the FMLA based on his five years of prior service. This decision, although not binding on courts outside the First Circuit, supports a broad interpretation of the U.S. Department of Labor (“DOL”) regulations concerning eligibility for coverage under the FMLA.

In most states, employees complaining that their FMLA leave requests have been improperly denied may seek relief either in court or through federal or state labor departments. Employees have not hesitated to place their disputes into court. On average, more than 2,500 FMLA-related complaints are filed each year, according to the DOL; many of these complaints have the potential to result in significant damages for the employer. In one extreme case, a jury returned a verdict of $11.65 million for an employee who claimed that his employer retaliated against him for taking FMLA leave to care for his parents. Schultz v. Advocate Health, No. 01C- 0702 (N.D. Ill. June 5, 2002).

It can be frustrating to manage an employee who takes time off from work for what seems like a minor ailment. Equally frustrating are situations where it is difficult to tell if an employee is eligible for FMLA leave. What can employers do to protect the interests of their company against the significant liability concerns presented by the FMLA, while simultaneously accommodating employees with legitimate health concerns? To begin with, employers should have a basic understanding of the provisions of the FMLA. Having a working knowledge of these provisions will help employers make rational, fair decisions when responding to FMLA leave requests. For example, employers should know that, in most cases, only companies with 50 or more workers are subject to the provisions of FMLA, and that an employee must work at least 1,250 hours in a given calendar year to be eligible for FMLA leave.

Employers must also understand that it is unlawful to retaliate against an employee for requesting or taking FMLA leave. An employer can properly fire an employee for a legitimate, non-discriminatory reason that is unrelated to FMLA leave – such as poor work performance – but taking such action soon after a worker has requested leave, or while he or she is out on leave, may enable the employee to argue that the motive for the decision was retaliatory. In addition, as long as a company’s internal policies do not interfere with the goals of the FMLA, an employer can insist upon compliance with its guidelines. One court found that a company’s policy requiring employees on sick leave to remain home could be applied to employees taking FMLA leave, because the company’s restriction did “not conflict with the substantive guarantees under the FMLA.” Hackney v. Central Illinois Public Service Company, 2006 WL 2095808, at *8 (C.D. Ill. July 27, 2006).

On December 1, 2006, the DOL announced that it was seeking information and public comments regarding the effectiveness of the FMLA. This provides an ideal opportunity for concerned employers and employees to provide input on how to improve the application of the FMLA in the workplace. The FMLA serves a laudable purpose by ensuring that employees can care for themselves and their family members in times of sickness without risking their job security.

The statute’s use of ambiguous terms such as “serious health condition” and “eligible employee,” however, creates a potential for abuse and litigation. Clarification of the rules for FMLA leave will benefit both employers and employees. Employers will understand more clearly the circumstances under which leave must be granted and employees will know with greater certainty when their jobs will be protected.