FMLA questions

[Rip Verkerke <ripv@virginia.edu>]

I punted on three questions students asked during today's class on the FMLA.
I am now prepared to give better, though not definitive, responses to all
three of them.

(1) Would an employer have to reinstate an employee whose job was eliminated
while he was on leave?
        Technically, no, but perhaps sometimes practically, yes.  If you
take a look at  104(a)(3)(B) of the Act, you'll see that a "restored
employee [is not entitled to] any right, benefit, or position of employment
other than any right, benefit, or position to which the employee would have
been entitled had the employee not taken the leave."  Without searching the
regulations for restrictive interpretations of this provision, one could
surely argue that a job eliminated by a reduction in force is not a
"position to which the employee would have been entitled."  A contrary
argument might focus on the language "a restored employee" and contend you
have to be restored before the section applies.  That seems a stretch to me,
and the purpose of the section is to make you no worse or better off than if
you had not taken leave (i.e., still subject to layoffs).
        The practical problem is the one I identified in class.  An employer
must worry about liability under the anti-retaliation provisions (see  105)
whenever it takes action against an employee who has taken FMLA-protected
leave.
        So if you are confident that there will be no factual question about
your motive (i.e., company-wide layoffs are eliminating whole categories of
positions), then you can probably feel safe refusing to reinstate.  But if
the layoffs are selective and more debatable, then I would advise extreme
caution.

(2) Are "voluntary" conditions like cosmetic surgery (or suicide attempts)
covered?
        The statute draws no distinction between voluntary and involuntary
conditions in defining a serious health condition.  I haven't searched the
regulations for the DOL's position, but I don't see how such a limitation
could be read into the provision.  See  101(11).

(3) Are state government employers covered?
        The statute expressly covers any "public agency" as defined in the
FLSA.  Thus, Congress has unequivocally expressed its desire to extend
protection to state government employees.  However, the Supreme Court has
recently held that the ADEA (federal age discrimination statute) cannot
constitutionally be applied to the states (at least in an action for
damages).  See Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000).
Unless you can come up with some way to distinguish the FMLA from the ADEA,
then it seems quite likely that state governments are immune from suit.  It
is yet to be resolved whether Bivens-type actions against state officers
might provide a way around this limitation.

I hope that is helpful.

Regards,

Rip

J. H. Verkerke
Professor of Law and Director,
Program for Employment and Labor Law Studies
University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903-1789
Voice: 804/924-3463   Fax: 804/924-7536
Web: http://pells.org/rip/