The Family and Medical Leave Act: impact on the law enforcement employer.

In 1993, Congress passed and President Bill Clinton signed into law the Family and Medical Leave Act (FMLA). (1) It was enacted to address the concern that people were sometimes losing their jobs when they missed work due to a serious illness or family crisis. The law is undoubtedly popular with the 50 million employees who have used its provisions during the past 12 years. (2) Conversely, some employers view the legislation as a strain on efficient day-to-day operations of the workplace, a burden on other workers who must compensate for absent coworkers, and a vehicle of abuse for some employees who manipulate it for personal time. There may be some reality in each of these conflicting perceptions of the FMLA. This article outlines the major provisions of the FMLA and illustrates how they impact the law enforcement employer.

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The FMLA entitles eligible employees to a minimum of 12 weeks unpaid leave during any 12-month period because of their own serious health condition; to care for certain family members who have a serious health condition; or because of the birth of a child (and for the care of the child), or the placement of a child for adoption or foster care. (3) As self-explanatory as this language seems, disputes often arise over the meaning of certain terms used in the FMLA. For example, who are the eligible employees entitled to benefits? What is a serious health condition? For which family members can an employee take FMLA leave to provide care? How must FMLA leave be taken? The common theme that emerges when answering these questions is that when it passed the FMLA, Congress did not intend to cause a hardship on employers who could not afford to be without employees for up to 3 months during a 1-year period.

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WHAT EMPLOYEES ARE ELIGIBLE?

To balance the interests of the employer in maintaining a set workforce and the personal situations of employees, there are limitations on the eligibility for FMLA leave. For employees to invoke protection under the FMLA, they must work for an employer to whom the provisions of the act apply. There usually is no guesswork involved in this determination for the law enforcement agency. While a private employer only is governed by the FMLA when it is "engaged in commerce [and] employs fifty or more employees for each working day during each of twenty or more calendar workweeks in the current or preceding calendar year," (4) the FMLA applies to all public agencies. A public agency is defined as "the government of the United States; the government of the state or political subdivision of a state; or an agency of the United States, a state, or a political subdivision of a state, or any interstate governmental agency." (5) The only exclusion from the FMLA for a public agency is if the employee invoking the act is "employed at a worksite at which [the] employer employs less than fifty employees if the total number of employees employed by that employer within 75 miles of that worksite is less than fifty." (6) Because for this calculation a state or political subdivision of a state constitutes a single public agency, and, therefore, a single employer (for example, a state, a county, a city, or a town is a single employer), this calculation usually does not relieve even the smallest law enforcement agencies of compliance with the FMLA. As a result, the crucial factor determining whether a law enforcement agency employee is entitled to FMLA coverage is the status of the individual employee.

Eligible employees are individuals who have been employed for at least 1 year by the employer, and for at least 1,250 hours of service with such employer during the previous 12-month period. (7) In attempting "to balance the demands of the workplace with the needs of families," (8) Congress stipulated that workers only become eligible for FMLA coverage after being employed for 1 year. Additionally, the 1,250 hours-of-service provision serves to exclude part-time and seasonal workers from FMLA coverage. It would seem that determining the number of hours worked by someone would simply be a matter of mathematics. However, calculating the number of service hours expended for an employer can be complicated. Law enforcement employers must consider factors, such as time spent on leave, time spent on call, and time spent training when determining whether an employee has worked the requisite number of hours.

When Congress enacted the FMLA, it directed courts to use the "legal standards established under section 207 of this title" (9) to determine whether an employee had met the hours of service requirement. (10) The Supreme Court long ago pronounced that work for purposes of the Fair Labor Standards Act (FLSA) (and, by reference, hours of service for the FMLA) (11) means "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer ...." (12) This definition should be considered when calculating whether leave, being on call, and training sessions constitute time spent working for a law enforcement employer.

Leave

Simply stated, neither paid nor unpaid leave is included in any calculation of hours of service under the FMLA. In Plumley v. Southern Container, Inc, (13) the U.S. Court of Appeals for the First Circuit was presented with an FMLA eligibility dispute. The legal issue resolved by the court was whether an employee had met the hours of service eligibility requirement contained in the FMLA. The court heeded the standard of Tennessee Coal, Iron & R.R. Co. (14) while delving further into whether leave time fit its criteria. The court relied on the Black's Law Dictionary definitions of employment and work in concluding that "only those hours that an employer suffers or permits an employee to do work (that is, to exert effort, either physically or mentally) for which that employee has been hired and is being paid by the employer can be included as hours of service within the meaning of the FMLA." (15) While employees are on leave, even if paid leave, they are not exerting physical or mental effort for their employer. (16)

On Call

The nature of law enforcement often requires those providing this essential public service to be considered on call. Agencies often have duty officers/agents who act as a first contact for periods of 12 hours, 24 hours, or even a week at a time. Unless called to respond to an actual incident, it is unlikely that time spent on call will be credited toward the 1,250 hours of service required for FMLA entitlement. The U.S. Supreme Court has held that whether an on-call employee is working during this time "depends on the degree to which the employee may use the time for personal activities." (17) In Birdwell v. City of Gadsden, (18) this Supreme Court principle was interpreted in the context of law enforcement employment. In Birdwell, a group of city police department detectives argued that they were entitled to compensation pursuant to the FLSA (19) for a week that they spent on call. The detectives were not required to remain at the police station, but they could not leave home unless they provided a forwarding number or owned a beeper. They testified that those who did not own beepers could not participate in outdoor activities, such as hunting or fishing; that none of them could leave town or go on vacation; that they could not go on family outings without taking two cars because of the possibility of being called to duty; and that they could not drink alcohol during the entire time period. (20) Despite the restrictions, the Eleventh Circuit Court of Appeals found that the detectives' on-call time was not work time. (21) The Eleventh Circuit panel reached this conclusion based on an extensive review of other circuit court decisions applying the Supreme Court test (22) to a myriad of circumstances. (23) It is obvious from this review that unless a department puts severe restrictions on officers substantially interfering with their personal lives, on call time simply will not be included in the computation of hours of service for FMLA eligibility.

Training

The law enforcement occupation also requires recurrent training for many of its personnel. For example, sworn officers must maintain proficiency with firearms during their careers and, thus, attend training to do so and also are expected to attend seminars and in-services to further hone their skills. Likewise, support personnel regularly attend conferences and training sessions to keep current in their areas of expertise.

Time spent by employees training to maintain their proficiency or to do their job better will count toward hours of service to their employers. The determination that time spent training should be credited to the employee's hours of service is based on the conclusion that the employer accrues the benefits of its employees' training. (24)

WHAT IS A SERIOUS HEALTH CONDITION?

Exactly what constitutes a serious health condition can be difficult to determine. While the FMLA provides seemingly clear standards, (25) "[t]he inquiry is necessarily extremely factually-intensive and often requires human resources personnel or individual supervisors with no medical training to make medical judgement calls about, for example, whether an employee is 'incapacitated' by an illness, or whether the employee is undergoing a 'regimen of continuing treatment.'" (26) For this reason, "the majority of FMLA cases turn on the issue of whether the employee or an immediate family member was suffering from a 'serious health condition.'" (27)

While the FMLA defines the term serious health condition as an illness, injury, impairment, 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, (28) relevant federal regulations provide much greater detail in explaining whether certain conditions satisfy the statute's definition. For example, the phrase continuing treatment by a health care provider is expounded upon in the regulations. It can include a period of incapacity (i.e., inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than 3 consecutive calendar days. Incapacity may be caused by a chronic serious health condition. One such chronic serious health condition is "one which may cause episodic rather than a continuing period of incapacity (examples include asthma, diabetes, and epilepsy)." (29) Employers should note that absences for such chronic conditions qualify for FMLA leave even though the employee does not receive treatment from a health care provider during the absence and even if the absence does not last more than 3 days. This would apply to asthmatics who may be unable to report to work because of the onset of an asthma attack or because their health care provider has advised them to stay home when the pollen count exceeds a certain level. (30)

Another serious health condition involving continuing treatment by a health care provider is described as a "period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective." (31) The employee or family member must be under the continuing supervision of a health care provider but not necessarily be receiving active treatment. Examples provided for this type of condition include Alzheimer's, a severe stroke, and the terminal stages of a disease. (32)

Chemotherapy or radiation treatments for cancer, physical therapy to help with severe arthritis, and dialysis to treat kidney disease are considered continuing treatment by a health care provider because they constitute "multiple treatments ... for a condition that would likely result in a period of incapacity of more than three consecutive calendar days" if the treatments were not performed. (33) These types of treatments do not require an actual absence of 3 consecutive days, and, yet, they constitute the continuing treatment aspect of the definition for a serious health condition.

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The regulations also provide guidance on conditions which ordinarily will not satisfy the FMLA definition of a serious health condition. Physical, eye, and dental examinations are not considered treatment for purposes of the act's second definition of a serious health condition. (34) Likewise, "[c]onditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not 'serious health conditions' unless inpatient hospital care is required or unless complications develop." (35) Finally, unless complications arise, (36) a common cold, the flu, earaches, an upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, and periodontal disease are additional examples of conditions that are not considered serious health conditions that qualify a person for FMLA leave. (37)

The regulations recognize that substance abuse may be a serious health condition, provided certain conditions are met. The guidance points out, however, that FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. Absence from work because of employees' use of the substance, rather than for treatment, does not qualify for FMLA leave. (38)

Given the complicated nature of the definitions within the FMLA, it is incumbent upon law enforcement employers to consult medical professionals or legal counsel when confronting the issue of whether a certain condition meets the requirement of being a serious health condition for FMLA leave eligibility.

WHO IS A SPOUSE, PARENT, AND SON OR DAUGHTER?

The FMLA allows employees to take leave to care for certain family members with a serious health condition. Specifically, an employee is entitled to leave to care for "the spouse, or a son, daughter, or parent, of the employee" with such a condition. (39) As self-explanatory as these terms appear, the FMLA and related federal regulations provide guidance for applying the definitions in various contexts. The statute simply defines spouse as "a husband or wife, as the case may be." (40) The corresponding regulation goes further, finding the term to mean "a husband or wife as defined or recognized under state law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized." (41) Making the determination whether employees are entitled to leave to care for their spouses will require familiarity with the employer's respective state law regarding marriage.

The term son or daughter is defined in the FMLA as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under 18 years of age, or 18 years of age or older and incapable of self-care because of a mental or physical disability. (42) The corresponding regulation provides parameters to gauge whether the son or daughter is incapable of self-care because of a mental or physical disability. (43) The regulation further instructs that a biological or legal relationship is not required for someone to be considered an employee's son or daughter because "[p]ersons who are 'in loco parentis' include those with day-to-day responsibilities to care for and financially support a child." (44) This determination is necessarily governed by the factual circumstances in a given situation.

The term parent is set forth in the FMLA to mean "the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter." (45) As when the employee is the person who is in loco parentis for a child, there needs to be no biological or legal relationship between the employee and the person who was in loco parentis when the employee was a child for the employee to now use FMLA leave to care for this parent. (46) Conversely, the term parent does not include parental in-laws. (47)

HOW MUST FMLA LEAVE BE TAKEN?

Because eligible employees are entitled to up to 12 workweeks of leave in 1 year pursuant to the FMLA, agreement between the employer and employee over how best to take the leave may be challenging to reach. It is important for the employer to know exactly what the FMLA requires of the leave when dealing with the requesting employee. First, FMLA leave is not necessarily paid leave. When Congress drafted the FMLA, it was sensitive to the potential hardship its provisions would put on employers. Doing without an employee for upwards of 3 months creates a void that must be filled during the absence. The statute sets out to "balance the demands of the workplace with the needs of families," (48) all the while doing it "in a manner that accommodates the legitimate interest of employers." (49) Toward that goal, the FMLA does not require employers to create additional paid leave for an employee taking leave pursuant to its provisions. The employee may elect or the employer may require that accrued paid vacation leave, personal leave, family leave, or medical or sick leave be substituted for any part of the 12-week period of leave guaranteed by the FMLA. (50) However, the employer is not required to provide paid sick leave or paid medical leave in any situation in which the employer does not normally provide such paid leave. (51) In other words, while the FMLA mandates time away from work for certain situations, it does not mandate that employers deviate from their leave-accrual or leave-usage policies.

Employers also should be aware that FMLA leave does not always have to be taken all at once. Rather, it may be taken intermittently or on a reduced leave schedule when certain circumstances exist. Intermittent leave is taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is when an employee's usual number of working hours in a workweek, or number of hours in a workday, are reduced. (52)

For FMLA leave to be taken on an intermittent or reduced leave schedule basis following the birth or placement of a child for adoption or foster care, the employer must agree. The employer's agreement is not required, however, when the mother has a serious health condition in connection with the birth of the child or when the newborn child has a serious health condition. (53)

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Intermittent or reduced schedule leave is also available to care for certain health conditions. Because there must be a medical need to take leave in this fashion, agreement of the employer is not required. (54) Rather, the standard enabling its use is that the medical need "can best be accommodated through an intermittent or reduced leave schedule." (55) Furthermore, "[e]mployees needing intermittent FMLA leave or leave on a reduced schedule must attempt to schedule their leave so as not to disrupt the employer's operations." (56) This type of planning may be possible in some situations, such as when leave is to be taken several days at a time spread over 6 months for chemotherapy treatments; but not possible in others, such as when a pregnant employee takes intermittent leave for periods of severe morning sickness. (57)

CONCLUSION

For some employers, complying with the different requirements of the myriad of employment laws may seem as complicated as navigating a minefield. Unlike their private sector counterparts, public law enforcement employers must not only comply with both federal and state statutory guidelines but with Constitutional provisions as well. This article has addressed some of the more challenging aspects of the Family and Medical Leave Act. Reference to these provisions will help the employer recognize what the FMLA requires of it and, possibly more important, when providing a service linked directly to our nation's security, what the FMLA does not require of it. In determining this, it is worth noting that Congress attempted to craft the FMLA in a way that would be satisfactory to both employees and employers. While nothing in the FMLA prohibits employers from providing more benefits than is required, all employers to whom the FMLA applies must comply with its minimum mandates.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Endnotes

(1) 29 U.S.C. [section] 2601, et seq.

(2) Cindy Skrzycki, "Lobbyists Play Tug of War Over Family Leave," The Washington Post, April 26, 2005, p. El.

(3) 29 U.S.C. [section] 2612.

(4) 29 U.S.C. [section] 2611.

(5) 29 U.S.C. [section] 203(x).

(6) 29 U.S.C. [section] 2611.

(7) Id.

(8) 29 U.S.C. [section] 2601(b)(1)

(9) 29 U.S.C. [section] 207 is part of the FLSA of 1938.

(10) 29 U.S.C. [section] 2611(2)(C).

(11) Supra note 9.

(12) Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944).

(13) 303 F.3d 364 (1st Cir. 2002).

(14) Supra note 12.

(15) Supra note 13 at 370.

(16) Military leave could be considered a caveat to the blanket exclusion of leave time being included in the computation of hours of service. The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 requires that people reemployed under its provisions be given credit for any months and hours of service they would have been employed but for the military service in determining eligibility for FMLA leave. For an in-depth discussion on the USERRA and its effect on law enforcement employers, see L. Baker, "Serving Their Country and Their Communities," FBI Law Enforcement Bulletin, July 2005, 25-32.

(17) Birdwell v. City of Gadsden, 970 F.2d 802 (11th Cir. 1992), citing Skidmore v. Swift & Co., 323 U.S. 134, 138 (1944).

(18) Id.

(19) Supra notes 9 and 11 (hours of service for the FMLA determined by FLSA's work hours standard).

(20) Supra note 17 at 808.

(21) Id. at 810.

(22) Skidmore v. Swift & Co., cited in note 17, supra.

(23) For example, in Bright v. Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671 (5th Cir. 1991) (en banc), the plaintiff was on-call during all off-duty time, he could not become intoxicated, was required to be reachable by beeper, and was required to arrive at the hospital within approximately 20 minutes of being called. Bright was bound by these restrictions for 11 months, had no days off, and took no vacations. While acknowledging that these severe limitations made the plaintiff's job undesirable and perhaps oppressive, the en banc court ruled the on-call time was not working time under the FLSA.

(24) See, e.g., Rich v. Delta Air Lines, Inc., 921 F.Supp. 767 (N.D. Georgia 1996).

(25) 29 U.S.C. [section] 2611 defines the term serious health condition as an illness, injury, impairment, 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.

(26) Stephanie L. Schaeffer, Causes of Action Under the Family and Medical Leave Act for Unlawful Termination, 14 Causes of Action Second Series 85 (2004), at p. 34.

(27) Id.

(28) 29 U.S.C. [section] 2611.

(29) 29 C.F.R. [section] 825.114(a)(2)(iii)(C).

(30) 29 C.F.R. [section] 825.114(e).

(31) 29 C.F.R. [section] 825.114(a)(2)(iv).

(32) Id.

(33) 29 C.F.R. [section] 825.114(a)(2)(v).

(34) 29 C.F.R. [section] 825.114(b).

(35) 29 C.F.R. [section] 825.114(c).

(36) The U.S. Department of Labor issued an Opinion Letter in 1996 clarifying that the examples provided in 29 C.F.R. [section] 825.114(c) can constitute, under certain circumstances, a serious health condition. This followed federal court opinions holding that certain illnesses are not serious health conditions even when all criteria listed in the regulations are met because they were specifically excluded from coverage. See, e.g., Brannon v. OshKosh B'Gosh, Inc., 897 F.Supp. 1028, 1036 (M.D. Tenn. 1995).

(37) Supra note 35.

(38) 29 C.F.R. [section] 825.114(d).

(39) 29 U.S.C. [section] 2612(a)(1)(C).

(40) 29 U.S.C. [section] 2611(13).

(41) 29 C.F.R. [section] 825.113(a).

(42) 29 U.S.C. [section] 2611(12).

(43) 29 C.F.R. [section][section] 825.113(c)(1) and 825.113(c)(2).

(44) 29 C.F.R. [section] 825.113(c)(3).

(45) 29 U.S.C. [section] 2611(7).

(46) 29 C.F.R. [section][section] 825.113(b) and 825.113(c)(3).

(47) 29 C.F.R. [section] 825.113(b).

(48) 29 U.S.C. [section] 2601(b)(1).

(49) 29 U.S.C. [section] 2601(b)(3).

(50) 29 U.S.C. [section] 2612(d)(2)(A) & (B).

(51) 29 U.S.C. [section] 2612(d)(2)(B).

(52) 29 C.F.R. [section] 825.203(a).

(53) 29 C.F.R. [section] 825.203(b).

(54) 29 C.F.R. [section] 825.203(c).

(55) 29 C.F.R. [section] 825.117.

(56) Id.

(57) 29 C.F.R. [section] 825.203(c)(1).

By RICHARD G. SCHOTT, J.D.

Special Agent Schott is a legal instructor at the FBI Academy.