Podcast: FMLA Takes Center Stage

Hosted by: David Weisenfeld

On this XpertHR podcast, Littler employment attorney Casey Kurtz discusses key trends and topics involving the Family and Medical Leave Act.

The Family and Medical Leave Act (FMLA) has presented a host of challenging issues for employers since its 1993 passage. The Supreme Court has provided little guidance, however, with only three decisions affecting the statute.

In a wide-ranging conversation, Pittsburgh employment attorney Casey Kurtz says the biggest question he gets from employers is, "How do I run my business with so many employees taking FMLA leave, including intermittent leave?"

FMLA Takes Center Stage

May 29, 2012

Kurtz says employers most often find abuses of the statute's leave provisions with employees that take leave a day or two days at time, which can have a big impact on the employer's operations. He points to situations where employees are physically able to work, but nonetheless are invoking the FMLA.

Employers must be careful, however, not to overreach in trying to ferret out suspected abuses. As an example, Kurtz points to an employee who says on her public webpage that she was "at the mall that day," on a day when she had called out to take FMLA intermittent leave.

Even though the employee is taking intermittent leave, Kurtz calls the employee's statement "ambiguous." While it may prompt suspicion with the employer, Kurtz says, "It is not an open and shut case of FMLA fraud."

He explains that if the employee has a medical condition, it may be consistent with that condition that the employee can go to the mall, but cannot perform his or her essential functions. In that situation, Kurtz asserts, an employer can overstep if it takes action without a reasoned approach.

Kurtz also calls the interplay between the FMLA and the Americans with Disabilities Act "a big source of confusion among employers," especially because these laws provide for different entitlements.

For example, there are situations where an employee who requests leave as an accommodation has not worked long enough to qualify for coverage under the FMLA. Kurtz notes, however, that the EEOC has stated that leave can be a reasonable accommodation under the ADA.

XpertHR Podcast (MP3 Format), Featuring a conversation with Littler attorney Casey Kurtz, of the firm's Pittsburgh office, about key Family and Medical Leave Act issues. Topics include new intermittent leave challenges, the interplay between the FMLA and the Americans with Disabilities Act, and much more.