FMLA Amendments and Revisions

Michael Newman
April 7, 2008 — 1,839 views  
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While there has been a lot of commotion recently regarding the Family and Medical Leave Act, most of that has centered either on the recent passage of amendments to the Act or on the Department of Labor's promulgation of revised regulations interpreting the FMLA. However, in addition to those legislative and regulatory changes that are underway, a couple of recent court cases from the 7th and 9th Circuits could go a long way towards defining how employers continue to adapt to the requirements and application of the FMLA. In January, the 7th Circuit Court of Appeals decided the case of Darst v. Interstate Brands Corp., 7th Cir. No. 04-2460 (Jan 11, 2008), and held that, while the FMLA covers time spent participating in treatment for substance abuse, it only applies for those specific days on which an employee actually receives treatment for substance abuse by a health care provider, not time that is spent awaiting such treatment. The plaintiff in that case, an employee name Kryzysztov Chalimoniuk, requested leave under the FMLA for treatment for alcoholism from July 29 to August 14. However, he was only actually in treatment from August 4 to August 11. The employee claimed that the preceding few days should have been covered because he spent that time "actively seeking" treatment, but the plain language of the regulations under the FMLA prevented the court from sustaining his argument. The applicable regulation states that: Substance abuse may be a serious health condition if the conditions of this section are met. However, 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. Therefore, the court held that Mr. Chalimoniuk's employer could terminate him because, when the first three workdays of his leave were excluded from FMLA protection, the plaintiff surpassed the threshold for allowable absences and merited discharge. One lesson that any employer could learn from this case is that, FMLA protection has its limits, and once those limits are surpassed, the Act does not prohibit the discharge of an employee for legitimate reasons. The 9th Circuit, in Chanco v. North Hawaii Community Hospital, No. 06-00547, 2008 WL 495531 (D. Hawaii, Feb. 25, 2008), also issued a particularly meaningful decision in the arena of FMLA law. That case concerned a nurse at the North Hawaii Community Hospital who had accumulated a significant record of on-the-job errors, although these errors were not promptly recognized or acted upon by the hospital's management. Eventually, once the nurse's supervisor realized the accumulation of these mistakes, she decided to terminate the plaintiff. However, at that point, plaintiff was out on FMLA leave. The decision to terminate the plaintiff was then not communicated to her until she returned from her FMLA leave. Because the employer did not act to discipline the plaintiff for her numerous incidents until she had left for her FMLA leave, the court denied summary judgment to the employer, holding that the timing of the discipline in this case was "sufficient to show by a preponderance of the evidence that there is a genuine issue of fact of whether taking FMLA leave was a negative factor in the termination decision." This case should serve to reinforce the idea that it is always best for an employer to discover and act upon employee misconduct as soon as possible, rather than allowing time to elapse and thus blurring the connection between the misconduct and the discipline. If the hospital in the Chanco case had been on the ball with regard to the timeliness of its discipline, it is likely either that the court would have granted their summary judgment motion or that the plaintiff might not have even been able to bring the suit in the first place.

Michael Newman


Michael Newman is a Partner in the Cincinnati office of Dinsmore & Shohl LLP, where he chairs the firm's Labor & Employment Appellate Practice Group. He represents a broad range of business clients, both large and small, in the state and federal courts.