Employers who are subject to the Family and Medical Leave Act understand that eligible employees are entitled to up to 12 weeks of leave for certain qualifying reasons, and if they return before exhausting their leave entitlement, the employee must be reinstated to his or her pre-leave position or an equivalent position. Two recent court decisions help shed some light on when FMLA leave begins for substance abuse treatment and an employer's obligation to reinstate a returning employee.
In Darst v. Interstate Brands Corp., No. 04-2460 (7th Cir., Jan. 11, 2008), an alcoholic employee with a poor attendance record was terminated after he missed several days of work following a drinking binge. He sued his employer under the FMLA, claiming that a portion of his absence was protected leave because he was trying to arrange treatment for his alcoholism. The FMLA regulations provide that substance abuse can be a serious health condition entitling an employee to leave, but only if the employee is receiving treatment. Absences due to the employee's substance abuse, on the other hand, are not protected by the Act.
Because of delays in dealing with providers and in obtaining insurance approval, the employee in Darst missed several days of work before actually beginning his inpatient substance abuse treatment. Although his health care provider certified that the employee's act of contacting a rehabilitation program was the first step in the treatment process, the court refused to define "treatment" under the FMLA that broadly. Under the FMLA regulations, treatment includes examinations to determine if a serious health condition exists and evaluation of the condition. Because there was no dispute that the employee was not examined during the first few days of his absence and because he received no actual treatment, those days were not protected by the FMLA and the employee was properly terminated. The court's analysis is consistent with a 1996 Department of Labor opinion letter stating that a telephone call to a doctor's office to discuss a health condition or care is not "treatment" for purposes of the FMLA.
In Breneisen v. Motorola, Inc., No. 05-02032 (7th Cir., Jan. 15, 2008), the court was asked to address a variety of issues relating to multiple FMLA claims, including whether an employee was properly reinstated following his FMLA leave. Prior to his leave, the employee was a Process Analyst and was responsible for various administrative duties related to shipping and process improvement functions. When the employee returned from his leave, he was reassigned to a production position with the same pay and benefits, but that required heavy lifting and certain manual duties. Motorola claimed that the reassignment was because the Process Analyst position had been eliminated and the tasks had been reassigned to other employees. The employee later transferred to another position, and ultimately he was terminated. He then sued, claiming that Motorola interfered with his FMLA rights by failing to reinstate him to this pre-leave position or to an equivalent position.
Motorola defended its actions by claiming first that it had eliminated the Process Analyst position (thus the employee was not entitled to be reinstated to his pre-leave job) and second, that the employee was reinstated to an equivalent position as required by the FMLA. The court disagreed with both arguments. As for the claimed job elimination, the court found that Motorola truly did not eliminate the job; it merely assigned the duties to other employees during the leave period. Merely restructuring or reassigning duties to accommodate an employee's absence is not a job elimination under the FMLA and the employee is entitled to be restored to his job when he returns. The court also found evidence that even though the post- and pre-leave jobs had the same pay and benefits, they were not equivalent. In particular, the pre-leave job was more administrative in nature, while the post-leave position involved manual tasks and heavy lifting.
So what should employers learn from these two cases? First, that "treatment" for purposes of the FMLA generally involves some face-to-face or direct contact with the health care provider. Telephone calls to discuss a health condition and arranging treatment for the condition are not enough. Secondly, even though an employer may have to divide up an employee's job to continue operations during his or her FMLA leave, that does not mean the job has been eliminated and the employee thereby loses his or her reinstatement rights. Finally, the test for an equivalent position upon reinstatement is broader than just pay and benefits. It also includes such things as responsibilities and other terms and conditions of employment.
The FMLA is a complicated law which continues to challenge supervisors, managers and HR professionals alike. WN&J recently hosted a number of FMLA programs in an effort to assist employers with this problematic area. If you were unable to attend one of our programs or simply need a quick refresher, go to the link below for a copy of an outline on FMLA basics. We hope this will be helpful. As always, if you have specific questions about the FMLA or employee leave issues in general, feel free to call a member of the WN&J labor group.
FMLA Basics Outline