Recent FMLA News

January/February 2007

• New Position Was Equivalent to Old Position for Purposes of FMLA



• Pilot's Compensated Reserve Duty Time Did Not Count as Hours of Service for Purposes of FMLA Eligibility



• Employee Provided Sufficient Information to Notify Employer of Need for FMLA Leave



• Short Breaks Away From Workstation During Work Day Can Be Form of Protected Leave Under FMLA

New Position Was Equivalent to Old Position for Purposes of FMLA (12/12/06) - 4th Cir.


An employee's new position in disaster recovery was equivalent to his prior position of server group manager, such that his placement in the new position following a leave did not violate the Family and Medical Leave Act ("FMLA"). The employee argued that the new position was less prestigious and less visible. However, his salary, title, bonus eligibility, health care, and retirement benefits remained unchanged, and he continued to work the same schedule at the same physical office. A dissent stated, inter alia, that the loss of supervisory or management authority cannot neatly be classified as de minimis.

Csicsmann v. Sallada

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Pilot's Compensated Reserve Duty Time Did Not Count as Hours of Service for Purposes of FMLA Eligibility (11/24/06) - 10th Cir.


An airline pilot's reserve duty time did not count as hours of service for purposes of determining whether she had accrued 1,250 hours of service in 12 months, as required for coverage by the Family and Medical Leave Act ("FMLA"). This was true notwithstanding that she was compensated for such time, and notwithstanding that during such time she could not drink alcohol, she had to be available by telephone, and she had to be able to report to the airport within one hour of being called. She did not argue that she received frequent callbacks.

Knapp v. America West Airlines

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The 10th Circuit Court of Appeals' jurisdiction includes Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

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Employee Provided Sufficient Information to Notify Employer of Need for FMLA Leave (112/26/06) - 7th Cir.


In this case, the 7th Circuit held that an employee's remarks two days after he underwent a prostate biopsy that he was "sick" and "wanted to go home," when considered in their proper context, were sufficient to put his employer on notice of his need for medical leave, as required to support his Family and Medical Leave Act ("FMLA") claim following his termination.

Over a period of four months, the employee communicated that he was suffering from "a weak bladder," which was severe enough to preclude a potential transfer of assignment, he was on a trajectory of increased medical visits and testing, including a blood test showing an elevated PSA, and he had recently had a prostate biopsy, a test the employer knew was used to diagnose cancer, and requested help in his work duties as a result. He repeatedly stated that he "felt sick" and intimated that his condition might be similar to his brother-in-law's latent prostate cancer, and his concerns were significant enough for him to suggest that he might commit suicide if he ended up bedridden as a result of prostate cancer.

The employee therefore gave an account of symptoms and complaints, which formed a coherent pattern and progression, beginning with initial symptoms, continuing with doctor's visits, and then additional testing and results, all communicated in one form or another to his employer.

Burnett v. LFW Inc.

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The 7th Circuit Court of Appeals' jurisdiction includes Illinois, Indiana and Wisconsin.

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Short Breaks Away From Workstation During Work Day Can Be Form of Protected Leave Under FMLA (11/6/06) - US Dist Ct., S.D.Ohio


An Ohio federal district court has ruled that short breaks away from the work station during the work day can be a form of protected leave under the Family and Medical Leave Act (FMLA). A diabetic employee who had sought to leave his work station early to get something to eat when he was "bottoming out" was not precluded from pursuing his FMLA interference claim on the basis that the period of time for which he sought leave could not qualify as "intermittent leave" under the FMLA.

Fact issues existed as to whether the employee gave sufficient notice to invoke FMLA protection for the two times he left his workstation, and whether it was "medically necessary" within the meaning of the applicable regulation for the employee to depart from his work station before his scheduled break time in order to eat to correct his low blood sugar.

Collins v. U.S. Playing Card Co.

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December 2006

• Employer Gave Proper FMLA Notice of Need for Health Care Provider Certification and Consequences of Failure to Have it Submitted (11/28/06)



• Security Guard Established Prima Facie Case of Termination for Exercise of FMLA Rights



• Labor Department Seeks Information and Comments on Family and Medical Leave Act



• FMLA's 75-Mile Requirement Clarified

Employer Gave Proper FMLA Notice of Need for Health Care Provider Certification and Consequences of Failure to Have it Submitted (11/28/06) - U.S. Dist Ct., D.Del


Consistent with the Family and Medical Leave Act ("FMLA"), an employer gave proper notice of the need for certification by a health care provider and the consequences of the employee's failure to submit it. The employer timely informed its third-party administrator of the employee's planned surgical procedure. The administrator in turn sent the employee no less than five letters requesting the medical information required to support her request for FMLA benefits and informing her that failure to timely submit the required medical information could result in her being denied those benefits. After the employee's return to work, she was told on multiple occasions of the need to submit the required medical information to support her request for FMLA benefits and was further informed that failure to do so could result in her absences being considered unexcused absenteeism days.

Lipscomb v. Electronic Data Systems Corp.

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Security Guard Established Prima Facie Case of Termination for Exercise of FMLA Rights (11/8/06) - U.S. Dist Ct., D.Conn


In this case, the U.S. District court found that a Connecticut security guard established a prima facie case of termination for exercise of his Family and Medical Leave Act ("FMLA") rights. He established the "inference of retaliatory intent" element through evidence that, when he was fired, he had taken approximately one month of leave immediately following a work-related motor vehicle accident and intermittent leave in the form of absences for medical appointments in the year between his return and his termination. He was also harassed and ridiculed upon returning from his medical appointments. Finally, the Human Resources manager allegedly explained he was being fired because he "had too many doctors' appointments."

Dupee v. Klaff's, Inc.

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Labor Department Seeks Information and Comments on Family and Medical Leave Act (11/30/06) - DOL


The U.S. Department of Labor announced today that it is seeking information and comment from the public on the Family and Medical Leave Act (FMLA) and its implementing regulations. The request for information (RFI) will be published in the Federal Register on Friday, Dec. 1.

"The department has had the FMLA on its regulatory agenda for a number of years," said Victoria A. Lipnic, assistant secretary for the department's Employment Standards Administration. "We've realized we need some fresh information and fresh thinking on the issues that have developed over nearly a dozen years since the regulations were implemented. We'd like more input from the public, which is why we put out the request for information."

Written comments on the RFI should be submitted to Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Electronic comments may be submitted by e-mail to: whdcomments@dol.gov. Comments of 20 pages or less may be submitted by FAX machine to (202) 693-1432, which is not a toll-free number. Comments should be received by no later than 5 p.m., February 2, 2007.

For more information on the request and for general information on the FMLA, please visit the Internet at www.dol.gov/esa/whd/fmlacomments.htm. Information is also available by calling the Department of Labor's toll-free help line at 1-866-4USWAGE (1-866-487-9243).

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FMLA's 75-Mile Requirement Clarified (11/14/06) - 10th Cir.


The Family and Medical Leave Act ("FMLA") excludes from coverage any employee whose employer employs fewer than 50 people "within 75 miles" of the employee's worksite. However, the "50/75" provision of the FMLA does not speak to the precise issue of whether "75 miles" between employer worksites should be measured in linear or surface miles. Department of Labor regulations provide that the distance should be measured by surface miles, using surface transportation over the shortest route. The regulation does not employ linear distance (i.e. - distance measured "as the crow flies"). In this case, the 10th Circuit upheld that DOL regulation.

Hackworth v. Progressive Casualty Insurance

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The 10th Circuit Court of Appeals' jurisdiction includes Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

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