Acute Confusion

Family medical issues confront and confound waste company owners and other employers all of the time. To make matters worse, courts have handed down conflicting decisions in cases involving the federal Family Medical Leave Act (FMLA).

The FMLA requires covered employers (any business with 50 or more employees at work on a daily basis for at least 20 weeks of a calendar year) to grant each eligible employee up to 12 weeks of unpaid leave during any 12-month period for one or more of the following reasons: the birth and care of the employee's newborn child; adoption or foster-care placement matters; to care for an immediate family member with a serious health condition; or to take medical leave when the employee is unable to work because of a serious health condition.

Increasingly, employees are suing their employers for allegedly denying them unpaid leave when the situation requires it and for retaliating against employees when they ask for time off. For their part, businesses say workers are abusing the law, by using it for trivial physical ailments like a headache or the flu rather than for a “serious” illness. In particular, much confusion exists about whether stress-related ailments qualify as a “serious medical condition.”

The U.S. Department of Labor (DOL) has invited interested parties to submit information and comments on how well the FMLA program is working. Employers welcome the opportunity to express their concerns and frustration with employee abuse of medical leave, especially unscheduled intermittent leave.

“[W]ith chronic conditions like a migraine or stress, [employers are] … looking for ways to come down on intermittent leave … especially … in the summer when stress and migraines come up on Fridays and Mondays,” Philadelphia attorney Linda Hollinshead told The National Law Journal.

Each year, DOL handles about 3,000 FMLA-related complaints, which are resolved, for the most part, by an internal agency process. Recently, however, more and more workers are bypassing the DOL in favor of filing private lawsuits.

Employee rights attorneys say companies are thwarting employees from taking the leave to which they are entitled under the law. Some employers insist that workers obtain second opinions from physicians before granting FMLA requests. Others retaliate against workers who take unpaid leave or simply fire them when it appears they might be ineligible.

Many employers say they bend over backwards to allow the leave, particularly when the FMLA is vague on whether a condition qualifies, which, the law's critics say, is most of the time.

“Lots of people have conditions that don't fit neatly into the type of conditions that the legislators had in mind,” San Francisco lawyer John Hyland, whose law firm handles cases for both companies and workers, told the National Law Journal. “Both sides will be clamoring for some type of bright-line rule as to what does or does not qualify as a serious health condition.”

Waste industry firms with 50 or more regular employees may wish to submit comments to DOL. Regardless, they will want to monitor the progress of the department's proceeding, as it may lead to some much-needed clarifications of the FMLA.
— Barry Shanoff
Legal Editor
Rockville, Md.