New FMLA guidelines expand employer responsibility

by on January 26, 2009 · 0 Comment POSTED IN: HR Info Center

Make sure health conditions have FMLA certification

Did you know that if you mistakenly deny employees FMLA medical leave, you may have to pay them for days they miss work due to resulting emotional distress?

It doesn’t seem fair, somehow. And yet that’s exactly what a federal appeals court has just decided.


The ruling came in a case from Oregon. An employee suffering a laundry list of ailments – diabetes, eczema, asthma, emphysema – repeatedly asked for time off under the Family and Medical Leave. The employer denied several of his requests. Then he was diagnosed with anxiety and depression.

He persuaded a jury that his FMLA leave was wrongly denied, and this caused his emotional state. The jury awarded him lost wages for the days he missed without pay due to his distress.

The appeals court said employees couldn’t sue under the FMLA for damages for unquantifiable emotional distress.

But they can seek damages under FMLA guidelines for days of work they miss due to upset from an employer’s wrongful denial of FMLA leave – because the pay they would have earned on those days is quantifiable. What’s this mean for employers?


It’s more important than ever to correctly assess health conditions that may qualify employees for leave under FMLA guidelines.

Make sure:

    • Their doctor completely and specifically fills out the certification.
    • You seek a second opinion – and even a third – where necessary
    • You require recertification for long-term conditions, generally every 30 days.

Cite: Farrell v. Tri-County Metro Trans. Dept. of OR, No. 06-45384, 9th Cir., 6/27/08.

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