LEL Flash | Issue: January 2013

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Issue: January 2013

Special Feature

How a Natural Disaster Impacts Leave Taken under the Family and Medical Leave Act

Katrina. The Joplin tornado. The 2011 Mississippi River Floods. Sandy.

These simple monikers sadly are etched forever in our minds, as they have wreaked havoc on many of our families, our communities, and our country. These natural disasters also had a devastating impact on employers across the country, many of whom had to shut their doors for periods of time or completely rebuild, and the employees who work for them. These disasters raise a host of employment law issues: whether employers are required to pay their employees during suspended operations; whether and to what extent health benefits should be offered during that time; and whether employers have notice obligations to their employees under specific employment laws or bargaining agreements when they shutter their operations. But what about an employer's obligation to provide a leave of absence to employees during a natural disaster under laws such as the Family and Medical Leave Act (FMLA)?

Does an Employee Have a Right to Take FMLA Leave after a Natural Disaster?

As an initial matter, the FMLA does not allow employees to take time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives. Joe Lane, a hospital medical technician, learned this the hard way when he sought FMLA leave to clean up his mother's basement after a flood. In dismissing his FMLA claims, the court found that "cleaning up mom's basement" did not constitute "caring for" his mom under the FMLA as a result of her serious health condition.1

Setting aside Mr. Lane's situation for the moment, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a "serious health condition" and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster. Some examples might include:

  • Employees who are physically or emotionally injured as the result of a natural disaster may be entitled to FMLA leave. Moreover, their impairments may be significant enough to rise to the level of disability, resulting in other possible employer obligations under the Americans the Disabilities Act.
  • A natural disaster causes an employee's chronic condition (such as stress, anxiety or soaring blood pressure) to flare up, rendering them unable to perform their job. Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave certainly could apply.
  • An employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster. Take, for instance, an employee's parent who suffers from diabetes. If the event took out power to the parent's home, the employee may need to help administer the parent's medication, which must be refrigerated. Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.

Could Mr. Lane's case above have turned out differently in front of a different court? Certainly, if he had shown that cleaning up his mother's basement was so intertwined with his "caring for" functions that not doing so would have put his mom in serious harm. Where an employee requests leave as a result of a natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave. Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave. Conversely, the employee is well advised to explain to the employer the connection of the natural disaster to the need for FMLA leave, particularly where the employee is caring for a family member with a serious health condition. Recently, the U.S. Department of Labor issued an FMLA Guide that addresses in a fairly plain-spoken manner the obligations employees have under the FMLA to cooperate with their employer when they need FMLA leave and what will be expected of them during this process.2 This Guide helps both employees and employers better understand their obligations under the FMLA at moments like these.

If an employer suspends its operations as a result of a natural disaster, can an employee be charged FMLA leave for these days?

The FMLA regulations3 clearly state how an employer should calculate FMLA leave when it suspends its operations. If the employer's operations have temporarily ceased and employees generally are not expected to report for work for one or more weeks, the days the employer's business activities have ceased cannot count against the employee's FMLA leave entitlement.

Therefore, if an employer's business is closed for one week or more because of a natural disaster, the days that the business is shuttered could not count against an employee's FMLA leave allotment. In these situations, employers cannot count the time against the employee's FMLA allotment, even if it is obvious the employee would not have been able to perform the duties of the job during the break.

1Lane v. Pontiac Osteopathic Hospital, 2010 WL 2558215 (E.D. Mich. June 21, 2010) (slip op.).

2http://www.dol.gov/whd/fmla/employeeguide.htm (last visited Dec. 17, 2012)

329 CFR ยง 825.200(h)

Jeff Nowak is a partner and co-chair of the labor and employment practice group at Franczek Radelet, P.C., a management side law firm based in Chicago, Illinois. He also is the author of FMLA Insights, which was named by the ABA Journal as one of the Top 100 legal blogs of 2011 and 2012.

Contents

Opening Page

Comments from the Chair

Tech Corner: Whose Social Media Account Is it? The Employee's or the Employer's?

Spotlight on Pro Bono: The Pro Bono Partnership of Atlanta Provides Pro Bono Representation to Nonprofit Organizations Serving Low-Income and Disadvantaged Individuals

Flash Co-Chairs:
Jeremy J Glenn, Meckler Bulger et al | Elana Hollo, National Labor Relations Board | Katherine Huibonhoa, Paul Hastings LLP | Amy F. Shulman, Broach & Stulberg LLP

American Bar Association Section of Labor and Employment Law
321 N Clark | Chicago, IL 60654 | (312) 988-5813