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Can’t Buy Me Leave (Continued from page 26)


The core provisions are straightforward. The FMLA entitles a qualified employee up to twelve (12) weeks of leave annually, which the employee may use to address medical crises and certain important fam- ily events.2


FMLA coverage is unavailable 2


See 29 U.S.C. § 2612 (a) (1). [A]n eligible employee shall be entitled to a total of 12 workweeks of leave during a 12-month period for one or more of the following:


(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 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 or 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.


4


to employees of small businesses, apply- ing only to employers with fifty (50) or more full-time workers during 20 or more calendar work weeks a year.3


FMLA cover-


age is also unavailable to new hires, since an eligible employee must have worked for at least 12 months, for at least 1,250 hours during the year preceding the start of leave, and at a work site where the em- ployer employs at least 50 workers within a 75-mile radius.4 The medical leave benefits provided by


the FMLA are available only for a “serious health condition.” An employee may take leave because of the employee’s own “seri- ous health condition,” if that condition makes the employee unable to perform


3


See 29 U.S.C. § 2611 (4) (A) (i) (defining “employer” as “any person engaged in com- merce or in any industry or activity affecting commerce who employs 50 or more employ- ees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year…”)


See 29 U.S.C. § 2611 (2) (defining eligible employees).


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5 6 7 8


“Ajury consists of twelve” persons chosen to decide


the essential functions of the job.5


The


employee may also take medical leave to address the “serious health condition” of a spouse, daughter, son or parent.6 Among other sins of omission, the


Congress failed to define “serious health condition.” Although the case law and Department of Labor regulations have looked to the definition of a “disability” under the ADA (a physical or mental impairment that substantially limits one or more major life activities),7


it is clear


that the definition under the FMLA is both broader and simpler. The FMLA generally will cover any illness, injury, impairment or physical or mental condi- tion involving either hospitalization or a period of medical care lasting more than three consecutive calendar days will fit the bill.8


Thus, the expert testimony likely


required to establish these claims should be substantially simpler than in the ADA claims, and a vocational expert should not be necessary at all. As you can see from the above, unlike


the ADA, the FMLA applies to conditions that are temporary or permanent, as long as the “serious” condition lasts more than three consecutive calendar days. Unlike the ADA or employment discrimination claims generally, the FMLA does not require proof of a willful or intentional violation of the act, as long as suit is brought within two years of the “last event constituting the alleged violation for which the action is brought.”9


Suit


may be brought within three years of the violation, if the violation is “willful.”10 The claims can be filed directly in federal district court, so you do not have to first pursue an administrative remedy. You may also file an FMLA claim with the Wage & Hour Division, U.S. Department of Labor. The FMLA also provides limited family


leave benefits. Under the statute, a covered employee may take family leave in con- nection with the birth of the employee’s child11


or the placement of a child with the


employee for adoption or foster care.12 Perhaps the FMLA’s most notable shortcoming is its failure to require that


(Continued on page 30)


29 U.S.C. § 2612 (a) (1) (D). 29 U.S.C. § 2612 (a) (1) (C). 42 U.S.C. § 12102 (2).


See 29 C.F.R. § 825.114 (a) (2004) (delineat- ing the term “serious health condition” for purposes of FMLA).


9


10 11 12


28 Trial Reporter


29 U.S.C. § 2617©(1)-(2). IBID.


29 U.S.C. § 2612 (a) (1) (A) 29 U.S.C. § 2612 (a) (1) (B).


Winter 2007


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