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Subscribe by EmailCourt tightens FMLA screws on employers
A recent Sixth Circuit decision highlights the often harsh inflexibility of the FMLA. It contrasts the FMLA with the ADA, rejecting the employer’s attempt to use the ADA to add some flexibility to the FMLA.
The FMLA can present significant difficulties for employers because it is so specific and absolute, in contrast to the more open-ended provisions of the ADA. Had the FMLA been drafted in the style of the ADA, it would have provided for a “reasonable” amount of leave, not the specific quantity of up to 12 weeks, and would have provided an exception for “undue hardship.”
That may appear to be an odd thought; after all, we have lived with both statutes now for over a decade and most of us don’t sit around thinking about how a statute might have been enacted differently, unless perhaps we are professors teaching employment law or public policy and legislation.
But the employer in this recent case, reacting to a difficult circumstance, thought the FMLA should be more like the ADA, and sought to have the court read into the FMLA a reasonableness provision. The court didn’t bite.
The case is Hoge v. Honda of America, 2004 FED App. 0317P (6th Cir. 6/16/04).
In it, the court rejected the employer’s argument that “the FMLA required Honda to reinstate Plaintiff to her employment position or an equivalent position only within a reasonable time, not immediately.”
There had been approximately a one-month delay between when the plaintiff sought to return from FMLA leave and when she was allowed to return to work. The employer claimed this delay was reasonable due to “Plaintiff’s physical limitations, her unanticipated return, and the significant changes made by Honda to its production processes during a model changeover.”
The court enumerated a couple of exceptions to the obligation to immediately reinstate an employee from FMLA to the same or an equivalent position:
An employee returning from FMLA leave is not entitled to restoration unless he would have continued to be employed if he had not taken FMLA leave. For instance, an employer need not restore an employee who would have lost his job or been laid off even if he had not taken FMLA leave. . .
[T]he right to restoration does not arise unless the returning employee is able to perform the essential functions of the position or an equivalent.
[T]he FMLA permits employers to apply a uniform policy or practice that conditions restoration under § 2614(a)on the receipt of medical certification from the employee’s healthcare provider stating that the employee is able to resume work
It was undisputed that none of these exceptions applied.
The employer argued that to be consistent with the ADA, the FMLA should be read to allow employers “a reasonable amount of time to evaluate whether an employee is disabled, to identify reasonable accommodations, and to minimize potential liability under other federal and state laws.”
The court cited FMLA regulations and quoted and relied upon the plain language of the statute:
The FMLA’s text, set forth in more detail above, provides that an employee returning from FMLA leave “shall be entitled, on return from such leave – . . . to be restored by the employer” to his prior position or an equivalent position with the same conditions of employment. . . .The plain meaning of “on return from such leave” is not ambiguous and, contrary to Honda’s argument, will not be construed to mean “within a reasonable time after the employee is able to return from such leave.” . . . If Congress had intended to permit employers to restore employees within a reasonable time after their need for FMLA leave had ended, it would have so stated.
Somewhat inconsistently, the court cites a regulation providing that where an employee’s circumstances change, requiring additional leave, or permitting early return, “the employer may require that the employee provide the employer reasonable notice (i.e., within two business days) of the changed circumstance where foreseeable.”
Lesson learned? Have a plan in place for immediate restoration upon return for every employee that takes FMLA leave. Preferably, keep the employee’s original position open, using only a temporary replacement. Otherwise, be sure an equivalent alternative will be available at any time upon two business days’ notice.
Difficult to do that? Blame Congress and the Clinton administration (and the courts to a lesser degree).
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I have been on leave for almost 3 months…and i just had my surgery for my work related injury. It stinks that i was forced to take FMLA after my doctor said i could go back to work until my surgery. My employer wasted all my time and now im 2.5 weeks since my operation and now i have to return to work or lose all my benefits.
My employer claims they have no modified duty yet there are plenty of things to do that meet the doctor’s requirements.
Ill remember that the next time they say, “we value our employees.” what a crock.