FMLA

Question 1

What entitlements must an employee receive upon returning from FMLA leave?

Answer 1

After a worker returns from leave, the worker is entitled to be reinstated to her previous position or an equivalent one. Id. § 2614(a)(1); Hansler v. Lehigh Valley Hosp. Network, 798 F.3d 149, 152–53 (3d Cir. 2015)

Question 1

What is the FMLA’s stated purpose?

Answer 1

The stated purposes of the FMLA are to “balance the demands of the workplace with the needs of families” and “to entitle employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(1) and (2). The FMLA seeks to accomplish these purposes “in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. § 2601(b)(3).

Question 2

Which governmental body administers the FMLA?

Answer 2

The U .S. Department of Labor

Question 3

Which employees are eligible for FMLA leave?

Answer 3

An employee is eligible for FMLA leave if she has worked “at least 1,250 hours of service with [her] employer during the previous 12 month period.” 29 U.S.C. § 2611(2)(A); Erdman v. Nationwide Ins. Co., 582 F.3d 500, 504 (3d Cir. 2009).

Question 4

What two types of claims can arise under the FMLA?

Answer 4

Two types of claims can arise under the FMLA, retaliation (29 U.S.C. § 2615(a)(2)) and interference (29 U.S.C. § 2615(a)(1)). See Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012).

Question 5

In general, what is an employee entitled to under the FMLA?

Answer 5

A total of 12 workweeks of leave during any 12-month period for a qualifying reason.

Question 6

What are qualifying reasons for FMLA leave?

Answer 6

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.

(B) Because of the placement of a son or daughter with the employee for adoption or foster care.

(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.

Question 7

What leave does the FMLA provide for servicemembers?

Answer 7

An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember. The leave described in this paragraph shall only be available during a single 12-month peri-od

Question 8

Which employers does the FMLA apply to?

Answer 8

The FMLA applies to private employers with 50 or more employees working within 75 miles of the employee’s worksite. Em-ployers with fewer than 50 employees can also choose to provide benefits similar to those required by the FMLA, and many find it beneficial to do so. The FMLA also applies to all public agencies and private and public elementary and secondary schools, regard-less of the number of employees

Question 9

What are the elements of an FMLA interference claim?

Answer 9

To make a claim of interference under the FMLA, a plaintiff must establish:

(1) he or she was an eligible employee under the FMLA;

(2) the defendant was an employer subject to the FMLA’s requirements;

(3) the plaintiff was entitled to FMLA leave;

(4) the plaintiff gave notice to the de-fendant of his or her intention to take FMLA leave; and
(5) the plaintiff was denied benefits to which he or she was entitled under the FMLA.

Capps v. Mondelez Glob., LLC, 847 F.3d 144, 155 (3d Cir. 2017)

Question 10

What damages are available under the FMLA?

Answer 10

• Backpay (wages, salary, employment benefits, and other compensation that the employee might be entitled to).
• Liquidated (double) damages (man-datory unless defendant proves it act-ed in good faith).
• Prejudgment interest at the “prevail-ing rate” (mandatory)
• Attorneys’ fees (permissible by the court).
• Reasonable expert witness fees (per-missible by the court).
• Other costs (permissible by the court).
• Appropriate equitable relief, such as employment, reinstatement, and promotion.

Question 11

Can a plaintiff recover punitive damages under the FMLA?

Answer 11

No. Zawadowic v. CVS Corp., 99 F. Supp. 518, 534 (D.N.J. 2000).

Question 12

Can a plaintiff recover emotional distress damages under the FMLA?

Answer 12

No. See, e.g., Rodgers v. City of Des Moines, 435 F.3d 904, 909 (8th Cir. 2006); Montgomery v. Mary-land, 72 F. App’x 17, 19-20 (4th Cir. 2003).

Question 13

Can a plaintiff recover attorneys’ fees and costs under the FMLA?

Answer 13

Yes.
In addition to any judgment awarded to the plaintiff, the court shall allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant. 29 U.S.C.A. § 2617(a)(3); 29 C.F.R. § 825.400; 60 Fed. Reg. at 2262.

Question 14

Does the FMLA permit a hostile work environment claim?

Answer 14

No. See Hilton v. Home Depot, Inc., No. CV 20-5145, 2022 WL 837207, at *3 (E.D. Pa. Mar. 21, 2022).

Question 15

What are the elements of an FMLA retaliation claim?

Answer 15

To prevail on an FMLA retaliation claim, the plaintiff must show that (1) he took an FMLA leave, (2) he suffered an adverse em-ployment decision, and (3) the adverse deci-sion was causally related to his leave.

Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004), holding modified by Erdman v. Nationwide Ins. Co., 582 F.3d 500 (3d Cir. 2009).

Question 16

Does a plaintiff have to exhaust administrative remedies before bring-ing a claim under the statute?

Answer 16

No.

Question 17

What is the statute of limitations for a typical FMLA claim?

Answer 17

Generally, the Family and Medical Leave Act (FMLA) provides that an action may be brought not later than two years after the date of the last event constituting the alleged violation for which the action is brought. 29 U.S.C.A. § 2617(c)(1).

Question 18

What is the statute of limitations for a willful FMLA violation?

Answer 18

If the action is brought for a willful violation of 29 U.S.C.A. § 2615, such action may be brought within three years of the date of the last event constituting the alleged violation for which such action is brought. 29 U.S.C.A. § 2617(c)(2).

Question 19

In general, what does the FMLA’s interference provision prohibit?

Answer 19

When employees invoke rights granted under the FMLA, employers may not “interfere with, restrain, or deny the exercise of or attempt to ex-ercise” these rights. 29 U.S.C. § 2615(a)(1).

Question 20

In general, what does the FMLA’s retaliation provision prohibit?

Answer 20

employers may not “discharge or in any other manner discriminate against any individual for opposing any practice made unlawful.” 29 U.S.C. § 2615(a)(2).

Question 21

Can an employer use an employee’s FMLA leave as a factor in employment decisions?

Answer 21

No -employers are barred from considering an employee’s FMLA leave “as a negative factor in employment actions such as hiring, promotions or dis-ciplinary actions.”

Question 22

Does the FMLA provide relief if the employer technically violates the statute but the employee suffers no prejudice?

Answer 22

No - The FMLA “provides no relief unless the employee has been prejudiced by the violation.” Fraternal Ord. of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 246 (3d Cir. 2016).

Question 23

Does the McDonnell Douglas burden-shifting test apply to FMLA interference claims?

Answer 23

No - “[b]ecause [an FMLA interference action] is not about discrimination, a McDon-nell Douglas burden-shifting analysis is not required.” Sommer, 461 F.3d at 399.

Capps v. Mondelez Glob., LLC, 847 F.3d 144, 155 (3d Cir. 2017)

Question 24

If an employer would have terminated an employee for a reason that’s unrelated to FMLA leave - but the employee does, in fact, take FMLA leave - is the employee entitled to be reinstated to their position when their leave ends?

Answer 24

No - This right to reinstatement is qualified by a statutory directive that it does not entitle a restored employee to a right, benefit or position to which the employee would not “have been entitled had the employee not taken the leave.” 29 U.S.C. § 2614(a)(3)(B). Thus, for example, if an employee is discharged during or at the end of a protected leave for a reason unrelated to the leave, there is no right to re-instatement. 29 C.F.R. § 825.216(a)(1).

Question 25

To prevail on an FMLA interference claim, does the plaintiff have to show that he or she was treated less favorably than other similarly situated employees?

Answer 25

No - An interference action is not about discrimination, it is only about wheth-er the employer provided the employee with the entitlements guaranteed by the FMLA.

Callison v. City of Philadelphia, 430 F.3d 117, 119–20 (3d Cir. 2005)

Question 26

To prevail on an FMLA interference claim, does the plaintiff have to prove that the employer acted with discriminatory intent?

Answer 26

No - In proving that UPMC interfered with her rights, Lichtenstein does not need to prove that UPMC acted with discriminatory intent. Sommer v. The Vanguard Group, 461 F.3d 397, 399 (3d Cir.2006); Callison, 430 F.3d at 120.

Question 27

Can the employer refute an FMLA interference claim by showing that it had a legitimate business reason for its decision?

Answer 27

No - Under an interference claim, “the employee need not show that he was treated differently than others[, and] the employer cannot justify its ac-tions by establishing a legitimate business purpose for its deci-sion.” Sommer, 461 F.3d at 399 (3d Cir.2006)

Question 28

Can an employer be liable under the FMLA for discouraging an employee from using FMLA leave?

Answer 28

Yes - Addressing unlawful FMLA interference, the DOL has stated that it includes “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b).

Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006)

Question 29

Can an employer be liable under the FMLA for refusing to authorize FMLA leave?

Answer 29

Yes - Addressing unlawful FMLA interference, the DOL has stated that it includes “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b).

Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006)

Question 30

Does the FMLA require an employer to provide a reasonable accommodation to help an employee returning from FMLA leave reassume his or her position?

Answer 30

No - The FMLA does not require “an employer to provide a reasonable ac-commodation to an employee to facilitate his return to the same or equiv-alent position at the conclusion of his medical leave.” Rinehimer v. Cemcol-ift, Inc., 292 F.3d 375 (3d Cir.2002). In order for an employee to demon-strate entitlement to restoration, the employee must have been able “to perform the essential *272 functions of the job without accommodation” at the time he sought restoration. Id.

Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271–72 (3d Cir. 2012)

Question 31

Under the FMLA, does an employer have a right to ensure that employee’s who are out on FMLA leave are not abusing their leave?

Answer 31

Yes - Contrary to [plaintiff’s] assertion, there is no right in the FMLA to be “left alone.” (Appellant’s Br. at 8.) Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave, particularly those who enter leave while on the employer’s Sick Abuse List.

Callison v. City of Philadelphia, 430 F.3d 117, 121 (3d Cir. 2005)

Question 32

Are FMLA retaliation claims analyzed under the McDonnell Douglas burden shifting framework?

Answer 32

Yes - Since “FMLA retaliation claims require proof of the employer’s retalia-tory intent, courts have assessed these claims through the lens of employment discrimination law.” Lichtenstein, 691 F.3d at 302. Accordingly, a claim such as Capps’ FMLA retaliation claim is assessed under the burden-shifting frame-work established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).5

Question 32

What is a “serious health condition” under the FMLA?

Answer 32

“The term ‘serious health condition’ means an illness, injury, impair-ment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11); Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 141 (3d Cir. 2004), holding modi-fied by Erdman v. Nationwide Ins. Co., 582 F.3d 500 (3d Cir. 2009)

Question 32

Does an employee have to give notice to his/her employer before taking FMLA leave?

Answer 32

Yes - Prior to taking leave, an employee must give her employer notice of the request for leave, “stat[ing] a qualifying reason for the needed leave.” Id. § 825.301(b).

Question 32

How much notice does an employee have to give to their employer when their need for FMLA leave is unforeseeable?

Answer 32

When the need for leave is unforeseeable,9 employees are obligated to no-tify their employer “as soon as practicable,” 29 C.F.R. § 825.303(a), and “provide sufficient information for an employer to reasonably determine whether the FMLA may apply,” 29 C.F.R. § 825.303(b).

Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012)

Question 33

Can an employer require an employee to provide a medical certification to support their request for FMLA leave?

Answer 33

Yes - An employer may require its employees to support their requests for leave with a certification issued by a health care provider. 29 U.S.C. § 2613(a).

Question 33

Does an employee have to mention the FMLA when they are requesting leave?

Answer 33

No - To invoke rights under the FMLA, employees must provide adequate notice to their employer about their need to take leave. 29 U.S.C. § 2612(e)(2). In doing so, the employee “need not expressly assert rights under the FMLA or even mention the FMLA.” 29 C.F.R. § 825.303(b).

Question 34

Does an employee have to give written notice to invoke their right to FMLA leave?

Answer 34

No - It is clear that an employee need not give his employer a formal writ-ten request for anticipated leave. Simple verbal notification is sufficient. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007)

Question 35

What should an employer do when it does not have enough information about the reason for an employee’s request for leave?

Answer 35

in “any circumstance where the employer does not have sufficient infor-mation about the reason for an employee’s use of leave, the employer should inquire further of the employee … to ascertain whether leave is po-tentially FMLA-qualifying.” Id. § 825.301(a).

Question 36

Can an employer require an employee to provide a medical certification before they return to work stating that they are able to return?

Answer 36

Yes - Prior to permitting an employee to return to work, an employer may request that an employee provide such a certification, see id. § 825.312, as Reading required of Budhun here. In it, an employee’s healthcare provid-er *253 must merely certify that the employee is able to resume work. Id. § 825.312(b); see also Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1003–04 (6th Cir.2005)