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FMLA (Family Medical Leave) in Missouri

Eligibility, Serious Health Condition,
Incapacity, Tips and Traps

A couple of quick points before we get started …

FYI – See my article on FMLA and Light Duty.

FYI – Servicemember leave – See my article on FMLA 26 week Servicemember family leave. FMLA was amended in 2008 to provide for 26 weeks of leave to care for an eligible Servicemember if you are next of kin or a parent of child of the servicemember. Wherever you see a mention of “12 weeks” below, you should interpret it as follows: The new Servicemember leave entitlement is 26 weeks. BUT, you don’t get BOTH the 26 weeks to care for a servicemember, AND the 12 weeks for the traditional FMLA reasons — you get a max of 26 weeks during a year in which you care for a servicemember. So if you used 12 weeks for yourself, and then you had to care for a servicemember, you would only have 14 weeks left.

Ok, the quick points are out of the way. Let’s talk about FMLA.


The Family and Medical Leave Act was passed by Congress under Bill Clinton in 1993. The best he could do was get a FMLA bill that covered larger employers, who employ at least 50 people within 75 miles of your job site. Clinton ran for re-election in 1996 on the idea of reducing the size of covered employers down to 25 employees. For some reason he never got around to fighting hard for that important improvement in FMLA. As a result, FMLA does not cover nearly as many people as need the help.

Many people who work for smaller employers are under the misconception that because Congress passed FMLA their employers have to give them protected medical leave, and hold their jobs open for them. These people don’t realize that the law only applies to employers of 50+ employees.

States are free to pass their own versions of FMLA to provide job and benefit protection even for employees of smaller employers. Missouri has not done so. Big surprise.

NOTE for State Government Workers: FMLA is supposed to apply to protect the rights of state government employees as well as private sector employees. But the courts have tended to rule that FMLA is unconstitutional when applied to protect state government workers. The United States Supreme Court decided a case May 27, 2003 that give us more guidance. On May 27, 2003 the US Supreme Court issued an opinion in the case of Nevada Department of Human Resources v. Hibbs (PDF file, opens in new window). In Hibbs, the Court ruled that FMLA is constitutional and validly applies to protect the rights of state government employees when the leave is to care for a family member. The Court did not rule on the other provisions of FMLA, such as the right of state government employees to take medical leave for their own serious health conditions. It remains possible that in a later case, the Court could decide that FMLA does not apply to state workers who have been denied FMLA leave for their own serious health conditions. We’ll have to wait and see what lower courts do with the Hibbs decision. See Cautions for Government Employees for more tips and traps.

FMLA provides job and benefit protection during eligible leave periods.

(Remember the 2008 Servicemember leave entitlement – See my article on FMLA 26 week Servicemember family leave.)

FMLA provides that a covered employer must give us our old job back or an “equivalent” job at the end of eligible leave periods, and also continue to provide some of our important benefits during the leave.

FMLA provides UNPAID protected leave during any 12 month period (not necessarily measured on a calendar year basis – it’s up to the employer to establish a general rule as to when the 12 month period starts and ends for everyone). The employer may temporarily assign an employee to a new position that better accommodates the need for recurring FMLA leave.

The amount of leave is a maximum of 12 weeks for self, or spouse, child or parent. In 2008 we have a new entitlement to 26 weeks to care for a servicemember.

Major legal battles are fought over what constitutes an “equivalent” position when the employer reinstates you to a different position at the conclusion of leave, or significantly changes your job while you are out on leave. An equivalent position is supposed to be nearly identical to the pre-leave position in terms of pay, benefits, duties and status.

For a long time, major legal battles were fought over whether the employer sometimes had to give more than 12 weeks of leave, depending on how fastidious the employer was in following regulations that required the employer to inform you about how much FMLA leave you were using when out on leave. But the US Supreme Court pretty much ended those battles in 2002 in the Ragsdale case. It seems that you only will receive 12 weeks of protected medical leave, even if the employer does not tell you that you are burning up FMLA time until your time is almost gone. An exception would be if the employer misleads you somehow. It gets complicated.

The employer can’t mislead you about your FMLA time. Things get complicated when you try to combine vacation and paid sick time with unpaid FMLA time. It’s best to get the employer to give you a written explanation of when your FMLA time starts and stops, before you go out on the leave. If it is not clear when your FMLA time starts and stops, and the employer refused to give you a written explanation of its own opinion before the leave started, such refusal may come back to haunt them if they fire you during what you thought was protected FMLA leave.

Eligibility to take FMLA leave, in general

  • Your employer employs 50 or more people within 75 miles of your job site
  • You have worked for the employer for “12 months”.
  • You have worked at least 1250 hours in the previous 12 months.
  • You have not already used up your leave entitlement during the 12 month measuring period established by your employer.

What types of leave does FMLA allow?

(Remember the 2008 Servicemember leave entitlement – See my article on FMLA 26 week Servicemember family leave.)

Below is a quote from a FMLA section, on the DOL’s website.

Subject to section 2613 of this title, an eligible employee shall be entitled to a total of 12 work weeks of leave during any 12-month period for one or more of the following:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.

(B) Because of the placement of a son or daughter with the employee for adoption or foster care.

(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.

Each of the types of leave listed above have their own set of requirements, and their own body of court cases resolving disputes. Two of the types are quite commonly used: Leave due to personal serious health conditions, and leave due to family serious health conditions.

FYI – Servicemember leave – See my article on FMLA 26 week Servicemember family leave.

What’s a “serious health condition” for purposes of justifying leave?

Major legal battles get fought over whether your condition (or your spouse, parent or child’s condition) is sufficiently serious to justify your taking FMLA leave. In court, the judge makes the decision on a case by case basis as to whether the condition qualifies. See The Department of Labor’s FMLA website where the DOL provides detailed info about FMLA.

Your employer will probably require a medical certification from your doctor (or your family member’s doctor if applicable). The employer can accept that certification or challenge it. The employer challenges your own doctor’s certification by sending you for a second medical examination at its expense.

If the employer wants to send you for a second medical examination, that’s permissible as long as the employer does not send you to a doctor who the employer regularly uses – FMLA requires a more independent doctor. You might want to call a lawyer if the employer is starting to play the “independent medical examination” game with you. That’s because if your bosses like you and Human Resources likes you, the employer is probably not going to give you a hard time about your FMLA leave request unless they truly suspect you of abusing the system. Employers seem to tend to exercise their FMLA challenges more aggressively against people they don’t like very much, or people they want to get rid of.

How the “incapacity for more than 3 days” requirement of the Department of Labor gets a lot of people fired.

You have to have a serious health condition (or your family member does) to be eligible for the two most common types of FMLA leave. The Department of Labor has implemented some guidelines regarding what is, and is not, a “serious health condition” that get a lot of people fired. In particular, if you are not actually confined in the hospital, conditions might only be considered “serious” if they cause you to miss your ordinary activities for MORE THAN 3 days (that means 4 or more days). I’m not talking about long term serious conditions like diabetes or heart problems. I’m talking about the common short-lived conditions. The 4 or more day requirement applies to spouses and children as well, so that if the child is off from school for 4 days, his condition is more likely to qualify as a “serious health condition.”

Here’s one way in which the the problem commonly manifests: Let’s say you have a fairly minor-sounding condition like the flu, and call in sick on Friday and see a doctor, are sick all weekend, and then (still sick) return to work Monday (brownie points for dedication). When you return, you are one day short of the required 4 or more days for your flu to possibly rise to the level of a “serious health condition.” This means that your absence is probably not “FMLA protected” and can be used against you to get you terminated for too many non-FMLA absences. You may get brownie points today for working while sick, but if you miss a few more times without reaching the “4 days or more” threshold, then you’ll be at risk of termination for excessive absenteeism. This scenario, in many variations, gets a lot of people fired for being out sick too much, despite FMLA.

FMLA claims get very complicated. Intense legal battles occur over whether someone’s flu is a serious health condition. Nothing is cut and dry, and the court decides everything case by case.

Miscellaneous tips about FMLA

  • INTERMITTENT LEAVE – For your own sickness, or to care for your spouse, child or parent, you have the option of taking off work only as little as needed, and this can be mere hours or days. You must request “intermittent” FMLA leave.
  • FOLLOW THE EMPLOYER’S INSTRUCTIONS (or else see a lawyer) – The FMLA laws and regulations allow your employer to demand certain things of you, like a medical certification, perhaps a medical exam, and periodic reports about your return date. If you fail to cooperate, you may be terminated. If your employer’s demand was legal, and you ignored it, you may have no recourse. If you do not like a demand placed upon you by your employer, call a lawyer before you ignore the demand.
  • TERMINATION DURING LEAVE – See a lawyer if your employer terminates you during your FMLA leave. However, if you were terminated for EXCEEDING your 12 weeks of FMLA, then there may be nothing a lawyer can do for you under FMLA, unless the employer misled you in some way about the FMLA-eligible length of your leave.
  • BE ON YOUR GUARD DURING YOUR FIRST 12 MONTHS OF EMPLOYMENT – Bosses don’t like FMLA until they need it themselves, because it’s inconvenient to deal with the absences. Many of the top companies in St. Louis fire you during the first year of your employment under draconian absence policies that have the effect of identifying you as a person likely to use FMLA leave in the future. They identify you by your absences. They allow only a precious few absences or sick-related tardies in the first year before terminating you. They might not allow ANY absences during the first three months. FMLA does not regulate what the employer does with you during the first year of your employment.
  • EMPLOYER’s NOTICE OF YOUR RIGHTS – Make sure that the employer provides you with a written statement of your FMLA rights and the things your employer will demand of you in connection with the leave. This notice of rights must be given to you within a few days after you “request leave.”
  • BE SURE TO ACTUALLY “REQUEST FMLA LEAVE” – Don’t mince words: if you want FMLA leave, ask for it by name. If you meet the eligibility for FMLA leave, and need to be off sick, consider mentioning that you need FMLA leave when you call in sick (if you think you might have a qualifying serious health condition). If you request FMLA leave and get turned down, see a lawyer.
  • DAMAGES – Under FMLA you can only win modest damages: double backpay, expert fees, attorney fees and expenses of litigation and perhaps some actual out of pocket costs associated with the denial of FMLA leave. So even if your employer clearly violates FMLA, you won’t get rich. You can’t win any form of compensation for your pain and suffering, and you can’t win any punitive damages. BUT: FMLA case are often worthwhile cases for technical legal reasons, even though the amount of damages might be fairly modest. Please call a lawyer if you think a FMLA violation might have occurred.

Closing notes: The US Dept of Labor has a good FMLA website and will take your FMLA complaints

There is so much that could be said here about FMLA, more than I could ever put into a web page devoted to FMLA. But on the bright side, the US Department of Labor has a nice FMLA site with lots of info. The Dept of Labor supervises FMLA and wrote the Federal Regulations governing how employers have to handle FMLA leave.

Plus, the Dept of Labor will actually take your complaint about FMLA violations, just like the EEOC will take discrimination complaints. Here is a link to the Department of Labor’s FMLA pages. The link works intermittently, because the government site is sometimes down. You can go to Google and search for “FMLA” and see Google’s cached pages from the Department of Labor if their site is down when you want to access it.

But don’t be shy about calling lawyers to talk about your potential FMLA case. Employment lawyers tend to like FMLA cases, and I’m no exception. If you think you have a FMLA case, feel free to call and talk about it for a few minutes.

I know this FMLA article is quite brief, since FMLA issues get so complex at times, but I hope you found it useful.

See also my article on FMLA and Light Duty

See my article on FMLA 26 week Servicemember family leave.

Article written by | Tim Willoughby

***** END OF ARTICLE ***** Missouri Employment Law

Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)

Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.

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Phil Willoughby, Attorney
Licensed in Missouri and Kansas

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