Employer Religious Accomodations

Family Medical Leave Act–What is in a Title? Debra G. Richards Assistant United States Attorney Southern District of Indiana I. Introduction Claims under the Family and Medical Leave Act (FMLA) are increasing. United States Department of Labor (DOL) statistics indicate that II. Scope of the FMLA as applied to federal employees Enacted in 1993, the FMLA was designed to allow employees to take periods of leave from their jobs for various health and family related reasons. As enacted, the FMLA contains two Titles: Title I, codified at 29 U.S.C. §§ 2601-2916 and Title II, codified at 5 U.S.C. §§ 6381-6387 . Title I governs leave for private employees and federal employees not covered by Title II, and it

workers have filed 25 percent more FMLA complaints in fiscal year (FY) 2002 than in the prior twelve-month period. In fact, according to the DOL figures, there has been a steady rise in the number of complaints since the FMLA's enactment in 1993. There is every reason to believe that complaints against federal employers have likewise increased. There are several likely reasons for the increase in the number of FMLA complaints. One reason may be the complexity of the FMLA and its interaction with other statutes such as the pregnancy leave and workers' compensation laws, as well as with the Americans with Disabilities Act (ADA). Other reasons may include the relative newness of the FMLA, which can result in employers not being as familiar with the law when leave decisions are being made. In addition, the facts of each particular leave situation tend to be unique. This means that an employee's lawyer can always second-guess whether the actions taken in a particular employee's situation were proper. Finally, plaintiff's counsel will often "throw in" an FMLA claim when bringing other claims, such as employment discrimination charges. In addition to the increase in the number of complaints, the DOL also reported that the number of invalid FMLA complaints has increased by one-third in FY 2002 over the number found invalid in FY 2001. This article discusses two areas that every government attorney will want to consider early in a case involving FMLA claims in order to determine their validity: • whether the federal employee even has a right to file a private cause of action, and • whether the employee has suffered compensable damages so as to support a viable claim.

provides for up to twelve weeks per year of unpaid leave for workers who give adequate notice, 29 U.S.C. § 2612(a), and obtain medical certification of the need to take time off for a qualifying personal or family medical condition. 29 U.S.C. § 2613. Federal employees covered by Title I include postal service employees. 5 U.S.C. § 2105(e). Another category specifically excluded under Title II are federal employees employed on a temporary or intermittent basis. 5 U.S.C. § 6381(1)(A). Additional categories of employees who are not considered an employee under Title II include, among others, certain District of Columbia employees, and physicians, dentists, and nurses in the Veterans Health Administration of the Department of Veterans Affairs. See 5 U.S.C. § 6301(2)(B). Title II of the FMLA guarantees the same substantive rights given private and Title I federal employees to qualifying federal civil service employees. 5 U.S.C. §§ 6381-6387 . Through a series of nested definitions, Congress has determined which federal employees fall under Title II of the FMLA. Under Title II, "the term 'employee' means any individual who–(A) is an 'employee' as defined by section 6301(2) . . . and (B) has completed at least 12 months of service as an employee . . . ." 5 U.S.C. § 6381(1)(A). Section 6301(2) of the United States Code refers to 5 U.S.C. § 2105 for the definition of an "employee." Section 2105 defines an "employee" as generally anyone appointed to a federal service position, who is performing a federal function, and who is being supervised by another appointed employee or other persons identified in that statute. 5 U.S.C. § 2105(a). A Title II employee is any federal civil service employee who has worked more than twelve months in civil service, who is not a postal employee, and who does not meet the narrow

UNITED STATES ATTORNEYS ' B ULLETIN

M AY 2004

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