DOES THE FAMILY MEDICAL LEAVE ACT OF 1996 RESTRICT THE RIGHTS OF

EMPLOYERS? AN EXAMINATION OF COURT CASES REGARDING THE FAMILY MEDICAL LEAVE ACT FROM 1995-2000

Krista Gay History Seminar

May 5, 2016

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The success of women entering the workforce has been hailed as “The greatest economic

success story of the past one hundred years.”1 This is especially true in the United States, where

fewer than forty percent of women were working full time in the labor force in 1960, compared

to sixty percent of women working full time in the labor force in 2012.2 This trend is not unique

to the United States, as every industrialized nation has experienced a significant increase in the

number of women participating in the workforce since 1960. An important factor of women

entering the global workforce is the development of maternity leave in industrialized countries

during and after the women’s movement of the 1960s and 1970s. As of 2012, 178 countries offer

some form of paid maternity leave for new mothers, and fifty of these countries offer paid leave

for fathers.3 Every year, the International Labor Organization ranks these maternity leave

programs, and since the rankings began nearly a decade ago, the United States has remained in

the bottom five countries, namely because the United States still has no law mandating paid

parental leave. Instead, the United States has the Family Medical Leave Act. Passed in 1993, the

Act requires businesses with more than fifty employees to allow new mothers to take up to

twelve weeks of unpaid leave. During this time, her employer cannot give her job away. Passing

the act was a victory, as it was heavily opposed by major business leaders. These business

leaders feared mandated leave would crush business advantages and lead to the economic

collapse of major companies.

1 Derek Thompson, “The Spectacular Triumph of Working Women Around the World,” The Atlantic, March 7, 2012, http://www.theatlantic.com/business/archive/2012/03/the-spectacular-triumph-of-working-women-around-the-world/254063/ 2 Ibd. 3 The United States Census, “Maternity Leave and Employment Patters: 1961-1995,” Household Economic Studies, November 2001, https://www.census.gov/prod/2001pubs/p70-79.pdf

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Maternity leave policies were business led in the United States until 1978; prior to this it

was up to the individual business to decided if the company would allow a woman to take leave

after the birth of her child, and if she would be allowed to return to the same position after.

However, as more women began to enter the workforce and desired to remain employed after the

birth of their children, women’s advocacy groups asked Congress to create a national law

pertaining to maternity leave.4 This led to the creation and passing of the Pregnancy

Discrimination Act in 1978, which amended Title VII of the Civil Rights Act of 1964.5 This was

the first federal law to address pregnancy in the workforce. This act made it illegal to fire, not

hire, or refuse a promotion to a pregnant woman. It also altered the 1976 tax code, and permitted

families with a dependent child to claim a tax credit on childcare costs. This law made women

more comfortable seeking employment, and provided women with a sense of job security for the

first time, as they no longer had to worry about being fired for becoming pregnant or giving

birth.6 However, this act failed to identify how long of a leave and employer is required to give a

new mother.

The Pregnancy and Discrimination Act, and mandated maternity leave, became the primary

focus in 1987 in California Federal Savings and Loan v. Guerra. In 1981 California passed a

law requiring employers allow female employees to be granted up to four months of unpaid

maternity leave after the birth of a child. In April 1982, a receptionist at California Federal

4Lenhoff, Donna R., and Lissa Bell. "Government Support for Working Families and Communities: Family and Medical Leave as a Case Study." National Partnership. http://www.nationalpartnership.org/research-library/work-family/fmla/fmla-case-study-lenhoff-bell.pdf. 5“Pregnancy Discrimination Act” (114-38, 1978). United States Statues At Large, 42, 21. 6Lenhoff, Donna R., and Lissa Bell.

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Savings and Loan returned from four months of maternity leave and was told that the company

had filled her position with another employee, and there were no similar jobs available for her to

fill.7 The employee filed suit against her employer, arguing that California Federal Savings &

Loan violated the state law, while the employer argued the Pregnancy Discrimination Act, a

federal law, takes president over the California law. Since this act did not specify how long

maternity leave had to be, and, therefore, they were allowed to let her go after not working for

four months. This case was challenged to the Supreme Court of the United States. The Court

ruled in favor of the employee, stating that the states were allowed to set maternity leave law

lengths since this time was not specified in the federal law. In his opinion, Judge Marshall

explained, “Title VII, as amended by the Pregnancy Discrimination Act, does not pre-empt the

California statute, since both the federal and the state provisions share the goal of promoting

equal employment opportunities for women, and Congress intended the federal provision to be a

floor beneath which pregnancy disability benefits may not drop, not a ceiling above which they

may not rise.”8

When the law was first challenged in 1984, and a California state court first ruled in favor

of Guerra, advocates, leaders of feminist interest groups, and congresswomen met to draft the

first national maternity leave law.9 Later that year a final draft of a national maternity leave act,

which would become the Family Medical Leave Act, was officially sponsored by Congress

Howard Berman and William Clay, Congresswoman Patricia Schroeder, and Senator Christopher

Dodd.

7California Federal Savings & Loan v. Guerra, P36, 641 (Supreme Court of the United States, 1987), LexisNexis.8Ibd.9Lenhoff, Donna R., and Lissa Bell.

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Committee hearings were held for the Democrat controlled Senate.10 However, the bill

had no support from major labor unions, and Republican politicians argued that maternity leave

laws should continue to be business and state government let. The 1987 SCOTUS ruling gave

credibility and support to the proposed bill, and assisted in raising national awareness. Women

groups, advocates and interest groups, specifically the Association for the Advancement of

Retired Persons and the National Organization of Women, in wake of the SCOTUS ruling also

sought to bring national attention to the bill and put pressure on representatives to pass it.

Congress began hearing the bill in 1993, it was passed in late 1992, and signed into law by

President Clinton in February 1993.

The Family Medical Leave Act went into effect on August 5, 1993. In the weeks after,

business leaders and economic columnists claimed the act was ruining America’s economy. The

editorial boards of the Index-Journal of Greenwood, SC and Standard-Speaker of Hazelton, PA

both stated, “Are you wondering why our economy is still in such bad shape? Look at the

calendar! Check out the date, Aug. 5. It’s the day the Family Medical Leave Act (FMLA) went

into effect.” Both newspapers blamed the FMLA for putting addition red tape on businesses, and

that business had stopped hiring as a result. The Standard-Speaker claimed that this removed all

competitive advantage. Citing Tom’s of Maine and Reebok International of Massachusetts who

offer maternity leave as examples (two companies whose policies the FMLA was modeled after)

the paper claimed this law was now removing the competitive edge these companies once had.

Not only did the FMLA hurt businesses, the paper claimed, it also hurt people. The paper stated

that the bill directly hurt dedicated employees, as they would no longer be able to take personal

leave, because they would be making up the slack for those taking leave under FMLA.

10Ibd.

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Did the FMLA cause companies to loose their competitive advantage and force

companies into financial ruin? The financial outcomes of a company derive from many factors,

and therefore there is not currently a study linking FMLA with financial success or ruin of

companies. However, a less cumbersome method to examine how FMLA financially affect

companies, and to see if the fears of the columnists were warranted, is to examine the court cases

that were filed as a result of FMLA. There were one hundred seventy-seven court appeals made

regarding the Family Medical Leave Act between December 1993 and June 1999.11 Of these one

hundred twenty-seven were settled in district courts, forty nine in the U.S Court of Appeals and

one by a state Supreme Court. The three most common reasons for lawsuits was regarding job

security (fifty-four cases), seriousness of the employee’s illness (forty-eight cases) and questions

regarding an employee’s eligibility for leave under FMLA (fourteen cases). Through an

examination of these court cases it becomes clear that that fears of the editorial boards were

unfounded. Although the columnists originally believed women would overwhelming be the

recipients of leave, sixty-nine plaintiffs were men. Despite the newspaper columnists’ warning

that the act impeded business rights, corporations won over sixty-six percent of the cases filed.

Wisenhale’s12 article and research provided the most comprehensive list of court cases

regarding FMLA I could find. For this research project I used her list to identify court cases that

specifically addressed cases that could hurt the freedoms of business, such as the hiring and

firing process of employees. I chose these cases because the editorial boards feared the FMLA

would hurt business, and specifically stated that they believed the act would cause employers to

have to keep unfit employees that would hurt businesses economically. I read through the cases I

11 Susan K. Wisenhale, “The Family Medical Leave Act in Court: A Review of Key Appeals Court Cases Five Years After,” Working USA 3, no. 4. (1999) 96. 12Ibd.

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chose in their entirety, both the case summaries and all judges comments that were provided.

Additionally, if the case had been challenged at multiple court levels, I read through the

summaries and opinions issued by each court.

Job security was the primary focus of the Family Medical Leave Act, and the provision

economists feared. They worried that this provision would causes businesses, especially with

specialized employees, to loose profits. However, at a win rate of seventy-seven percent,

business won the most cases in this category. This paper examines three of the most influential

cases that were filed under the FMLA, but actually strengthened businesses: Lempres v. CBS

(1996), Clay v. City of Chicago (1999) and Oswalt v. Sara Lee Corporation (1996).

A primary concern with the FMLA is that it did not clearly define what constituted a

serious illness, and thus permitted leave under the Act. Employers and economists feared

businesses would be obligated to allow extended leave for employees for arbitrary illnesses.

Therefore, it was up to the courts, via court cases, to decided what illness and conditions

constituted as a serious illness, and thus obligated the employer to allow leave. Various courts

throughout the country ruled on forty-eight cases regarding what constitutes a serious illness

under FMLA. These rulings continued to dismiss the fears of businesses, as expressed by the

editorial boards of the Index-Journal of Greenwood, SC and Standard-Speaker of Hazelton, PA,

that they would be required to grant extended leave, and cause their businesses unnecessary

hardship, for employees suffering from minor aliments.

Scholars have wrongly cited Oswalt v. Sara Lee (1996) as the first case to define what

does and does not count as serious illness under FMLA.13 The case was originally ruled upon by

13Multiple academic pieces have wrongly cited Oswalt v. Sara Lee (1996) as an FMLA case, including: Susan K. Wisenhale, “The Family Medical Leave Act in Court: A Review of Key Appeals Court Cases Five Years After,” Working USA 3, no. 4. (1999) 96.

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the United States District Court for Northern Mississippi, Eastern Division on June 20, 1995.14 In

this ruling, Judge Neal Biggers stated, “food poisoning which requires one visit to the doctor

cannot possibly be construed as a serious health condition under the terms of the Act. The food

poisoning did not require the plaintiff to receive inpatient care at a hospital, hospice, or

residential medical care facility, nor did it require continuing medical treatment by a health care

provider.”15 However, the defendant appealed the case and it was accepted by the Fifth Circuit

Court of Appeals. In the February 26, 1996 ruling, the Court stated that this case does not qualify

as an FMLA claim because, “The FMLA did not go into effect until August 5, 1993... Any leave

taken prior to the effective date is not protected by the FMLA.”16 Since this is the Court of higher

ruling, Oswalt v. Sara Lee cannot count as an FMLA case. It should be noted, however, that later

court cases did reaffirm that food poisoning does not constitute as a serious illness under FMLA.

Taking the above into consideration, the first FMLA case to define what does not

constitute a serious illness was Hott v. VDO (1996). Tara Hott was hired by VDO in 1990 on a

permanent basis.17 Hott was transferred to different departments three times between being hired

and March 12, 1992. On this date she entered her company’s corrective action program, which

was in place to help correct chronic absences among employees. This program has three phases.

An employee would enter Phase I after a certain number of absences. During this phase the

employee was closely monitored to track their absences and number of tardies. If this behavior

continued the employee would progress to Phase II and then Phase III, at which point the

14 Kevin Oswalt v. Sara Lee Corporation d/b/a Bryan Foods Inc., P33, 341 (United States District Court for the Northern District of Mississippi, Eastern Division 1995), LexisNexis. 15 Ibed. 16 Kevin Oswalt v. Sara Lee Corporation d/b/a Bryan Foods Inc., P43, 882 (United States Court of Appeals for the Fifth Circuit, 1996), LexisNexis. 17 Tara Hott v. VDO Yazaki Corporation and Juergen Nies, P33, 430 (United States Court for the Western District of Virginia, Harrisonburg Division, 1996), LexisNexis.

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employee could be terminated. Hott was in Phase III when she began disability leave in January

1994. Hott returned to work on February 28, 1994, and was notified that she would be terminated

if she missed work again for any reason other than jury duty, a company shutdown, or the death

of an immediate family member. On March 2, 1994, Hott claimed to be suffering from

sinobronchitis, turned in an FMLA leave form to her employee and left work. VDO contacted

the local Department of Labor and was informed that sinobronchitis is not considered a serious

illness under FMLA. With this information, VDO terminated Hott’s employment. However, Hott

and her attorney’s believed her termination was indeed a violation under FMLA, and asked the

court for a summary judgment.

Hott claimed that only a physician, and not the Department of Labor, could determine

what qualifies as a serious illness.18 Additionally, the FMLA grants employees fifteen days to

provide a medical note from a physician affirming the seriousness of an employee’s illness,

which VDO did not provide to Hott.19 During the trial, attorneys from VDO admitted that the

company committed violated these rights of Hott.20 In his ruling Judge James Michael stated that

the FMLA defines a serious illness as, “an illness that involves any period of incapacity in

connection with or consequent to impatient care, or any period of incapacity requiring absence

from work of more than three calendar days that also involves continuing treatment, or

continuing treatment for a chronic health condition that is so serious that, if not treated, would

likely result in a period of incapacity of more than three calendar days.”21 The physician’s note

specified that Hott’s condition may persist for seven to ten days, however, her condition would

18 Hott v. VDO (1996) 19 The Family Medical Leave Act of 1996, § 825.307 a 20 Hott v. VDO (1996) 21 Hott v. VDO (1996); The Family Medical Leave Act of 1996, § 825.307

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not prevent her from performing the tasks required for her job. Therefore, the court ruled that

sinobronchitis, and similar colds, do not qualify as a serious illness and therefore, are not

protected under FMLA. By limiting and clearly defining what does and does not constitute as a

serious illness, as the FMLA did not, the courts further established the freedom businesses have

in their hiring and firing processes.

FMLA is most famous for granting unpaid maternity leave to women. However, business

leaders feared that a pregnant woman would now be given special protections, and would be

allowed to take time off throughout her pregnancy, not just after the birth of a child. This

argument was silenced by Guadenkauf v. Stauffer Communications (1995). This case stated that

conditions associated with pregnancy including morning sickness, back pain, and swollen feet,

did not qualify as a serious medical condition under FMLA. However, if a pregnant woman has

an illness that carries increased complication to her and her unborn child because she is pregnant,

such as chicken pox, then she is entitled to FMLA leave while pregnant, and then after her child

is born, as established in Reich v. Midwestern Engineering Plant (1996).22 Other health

conditions not considered serious illnesses under FMLA include arthritis, ruled in Reich v.

Standard Register (1997), and occasional rectal bleeding, as established in Bauer v. Dayton-

Walther Corporation (1997).23

Business leaders feared that the FMLA would obligate employers to keep employees

even if the needs of the business changed, thus causing unnecessary hardship on the employer

and costing the business money. The purpose of the FMLA was to ensure employers would not

22 Ibid 23 Wisenhale, 6

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dismiss employees simply due to a medical condition, and Lempres v. CBS (1996) ruled that

FMLA does not guarantee long term employment.

This case began in 1988 when the defendant, CBS, hired the plaintiff, Christina Lempres,

an African American woman, as an associate producer for one of their morning shows.24

Lempres worked for CBS full time until 1992 when she took maternity leave after the birth of

her first child. While on maternity leave, Lempres contacted her supervisor, Barbara Cochran, to

discuss her return to work when her maternity leave was over. While discussing this, Cochran

offered Lempres the position of a Future Editor. Lempres did not like this offer, as she described

this was a dead end position with little opportunity for advancement. Thus, Lempres denied the

position and, instead, applied for an open position as a Capitol Hill Producer. Lempres would be

responsible for covering news related to the House of Representatives, and considered this

position to be a promotion. Lempres was hired for a House Producer and began working in May

1993. She worked with the Chief Correspondent for Capitol Hill, Bob Schieffer, who was

responsible for assisting the Capitol Hill producers in developing newsworthy stories to report.

Lempres claimed that during her first six months working under Schieffer she was continually

ignored, and alleged that she was assigned stories that were not as newsworthy as some of her

co-producers. Lempres alleged that these acts were discriminatory, and claims she was only

given lesser assignments because she was African American.

Lempres began her second six month maternity leave in December 1993, and again called

Cochran during her leave to discuss returning to work.25 They discussed a variety of possible

opportunities when Lempres returned to work, including various producer positions, part time

24 Christina McHenry Lempres v. CBS, INC., 916 F. Supp. (United States District Court for the District of Columbia 1996), LexisNexis. 25 Lempres v. CBS (1996)

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and per diem work. In May 1994, Lempres was unconditionally invited to return to her former

position as House Producer. Lempres inquired as to the permanence of this position, and

Cochran responded by saying that the position was, “as permanent as anything else in the news

business.” On June 2, 1994, the day before Lempres was to return to work as a House Producer,

she submitted a letter of resignation, claiming she was obligated to resign due to the

discriminatory treatment she had received while working for Schieffer, and the offer of Futures

Editor that she had received after her first return from maternity leave in 1993. Lempres and her

attorneys sought summary judgment, claiming that she was wrongly terminated, and that her

termination violated four counts of law, including violating the FMLA.26

The court first examined the claim that Lempres termination violated the FMLA. As one

of the first FMLA to be granted summary judgment by the court, the court first had established

that Lempres was eligible for claiming FMLA was violated. The act requires that an employee

must have worked at least 1250 hours in a twelve month period proceeding the time off

requested under FMLA.27 The court established that Lempres had met this requirement. The

Court then sought to establish if CBS had violated the FMLA, which requires that upon return to

work after taking leave under the FMLA, the employee shall be, “(A) restored by the employer

to the position of employment held by the employee when the leave commenced; or (B) to be

restored to an equivalent position with equivalent employment benefits, pay, and other terms and

conditions of employment.”28

In his opinion, Judge Ricardo Urbina explained, “This act clearly states, ‘nothing in this

section shall be construed to entitle any restored employee to--(B) any rights, benefit, or position

26 Ibid. 27 Family Medical Leave Act of 1993. 29 USCS § 2611 (1993). 28 Ibid

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of employment, other than any right, benefit, or position to which the employee would have been

entitled had the employee not taken the leave.’”29 Therefore, the judges claimed that assurance of

permanent employment is not classified as an employee benefit by the act. Since CBS had

offered Lempres her former position as a House Producer, the position she had at the time her

maternity leave began, and filled this position with a temporary worker whose contract stated her

position would end once Lempres returned, the judges agreed that CBS met the employer

obligations FMLA required. Additionally, Lempre’s attorneys failed to present any evidence that

she would have been employed in a “more permanent fashion” if she had not taken maternity

leave.30 For these reasons, the court ruled that CBS did not violate FMLA, and established that

employers are not obligated under FMLA to offer job assurance to employees upon their return

to leave, unless their original contract prior to leave offered long time assurance, such as tenure.

Similarly, in Day v. Excel Corporation (1996) the United States District Court for the

District of Kansas, found that FMLA does not obligate employers to keep the positions of

employees on maternity leave if the business downsizes while maternity leave is taking place,

thus creating a further protection for businesses. The plaintiff, Donald Day, had three heart

attacks in 1992.31 Day’s doctors told him to visit his doctor yearly and to improve his lifestyle

habits with increased exercise and lower his weight and cholesterol, and, since then, his heart

condition had been asymptomatic. Day began working for Excel Corporation in 1984, after the

corporation merged with his previous employer, and he was employed for ten years in good

standing. During this time he did not experience any symptoms of heart disease, however, he did

29 Lempres v. CBS (1996) 30 Lempres v. CBS (1996) 31 Donald A. Day v. Excel Coroporation, P33, 47 (United States District Court for the State of Kansas 1996), LexisNexis.

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take three days off of work during this ten year period for heart related medical appointments. He

never told anyone he had a disability nor a heart condition, nor did he seek special treatment for

his alleged heart condition.

In March 1993, Day was promoted to an Operations Manager in the Case Ready meat

division, and was overseen by the sales manager, Patricia Cessnum.32 In late 1993, Day and

Cessnum competed for a manager position, which Cessnum was offered. Cessnum was not

pleased with Day’s job performance. In early 1994, the company began to approve budget cuts

for the Case Ready division that cut the division funds in half. Cessnum planned to give Day a

list of improvements he would be required to complete before his twelve-month review, however

budget cuts which removed employees from the department prevented her from doing this.

Additionally, in February 1994, Cessnum decided to eliminate Day’s position because corporate

documents stated that budget cuts, along with the projected income for the next year, no longer

required an operation’s manager for the Case Ready division. Following Excel’s policy, Day was

notified that the company would attempt to find him another job within the corporation.

A few days later , on February 23, 1994, Day went to see his cardiologist for his yearly

visit, and it was discovered that he would need heart surgery.33 Day notified Excel who granted

him leave and he had surgery two days later. Day returned to work on April 12, 1994 on a part

time basis, and returned to full time the next week, and was terminated on April 19, 1994, as

Excel claimed that, due to downsizing, they were unable to find Day another position within the

company. Day and his attorneys sought summary judgment, claiming that he was terminated

32 Day v. Excel (1996) 33 Ibed.

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because he took leave due to his heart condition, and, had he stayed, Excel would have found

him another position within the company.

In his opinion, Judge Thomas Marten explains that the FMLA grants employees twelve

weeks of leave to recover from a serious illness or to assist in the care of an immediate family

member who is recovering from an illness.34 The Court agrees that Day’s heart surgery

constituted as a serious illness, and, thus, he was able to make a summary judgment claim under

FMLA. The court cited Lempres v. CBS in their ruling, and affirmed that an employee is not

guaranteed assurance of permanent employment. The judges did not believe Day was seeking

summary judgment based upon a promise of permanent employment, and, therefore, sought to

see if his position had indeed been terminated due to his FMLA, which would qualify as an

FMLA violation. The Court said that an FMLA violation only occurs if an employee was

terminated or demoted because they took leave. The Court found sufficient evidence on behalf of

the defendant that Day was terminated due to budget cuts, as his position was cut before he took

leave. Additionally, the company’s policy stated that the company would attempt to find another

position, but it did not guarantee it. Therefore, the provision of Lempres v. CBS ruling stating a

position must be maintained if it was promised in a contract was not held. Although Day claimed

Excel would have found him another position if he had not taken leave, the Court found there

was no evidence to support this claim. For these reasons, the Court ruled in favor of the

defendant, reaffirmed that an FMLA violation can only occur if the primary motive for

terminating an employee was their FMLA leave, and established that employees on FMLA can

be terminated if company downsizing occurs during their leave. This ruling thus gives more

protection to businesses, and protects their freedom to downsize and make budget cuts, even if

34 Day v. Excel (1996)

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that means terminating employees, for the betterment of their business. Therefore, the fear of

FMLA critics that FMLA will require companies to make financially unwise decisions, such as

keeping an unnecessary position during budget cuts, is unfounded.

Likewise, the FMLA does not create protection for poor performance, as established in

Clay v. Chicago (1998). Dorothy Clay was hired by the Department of Health in Chicago in

1992, and was responsible for general clerical duties in the office.35 Clay had a degenerative disk

disease, and took leave several times, the longest between July 7 and August 8, 1994. During her

absence, her duties were performed by Michael Sulewski. Clay’s supervisors claim that Sulewski

performed the tasks considerably more efficiently than Clay. When Clay returned to work on

August 9, 1994, she was dismissed and told that Sulewski would be replacing her because of his

superior job performance. Clay and her attorneys asked for summary judgment, claiming that the

Department of Health violated FMLA by giving her position to another person and not offering

her a similar position upon her return.

The Court explained that an FMLA violation only occurs if an employee’s position is

terminated solely because the employee took FMLA.36 In the opinion by Judge Cummings, he

states that there is reasonable evidence to believe Clay would have been dismissed prior to taking

leave, or eventually, due to her subpar job performance. Clay taking leave did not cause her

employer’s to terminate her position. Instead, it confirmed for them that Clay was not the best fit

for the job, and, therefore, her position should be terminated. Thus, this ruling offered further

35 Dorothy Clay v. City of Chicago Department of Health, Erlinda Tzirdes, individually and not in her capacity as an employee of the City of Chicago Department of Health, Jackie Kean, individually and not in her capacity as an employee of the City of Chicago Department of Health, et al., P33, 697 (United State Court of Appeals for the Seventh Circuit, 1998) LexisNexis. 36 Clay v. City of Chicago (1998).

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protection for business, and dismissed the fear that business would be forced to continue to

employ individuals who demonstrate subpar performance.

One of the more controversial components under FMLA was the provision for employees

to be granted up to twelve weeks to care for a family member with a serious illness.37 Employers

usually agreed that it was not beneficial for business to have a seriously ill employee at work.

However, employers were more reluctant to grant three months of leave, and have to train a

temporary employee, so that an employee could care for a non-employee family member.

However, supports of the FMLA claim that the right to be able to take time to fulfill their family

duties should be a right all American employees have. Although this part of the Act was debated

during its passing, it was one of the least cited reasons for filing an FMLA case, with only ten

cases from the act’s passage until 2000, with employers winning all but three cases.

Courts applied higher levels of scrutiny in assessingthe seriousness of a family member’s

illness than an employees illness.38 For example, in doing this, the courts ruled that a child’s

asthma did not qualify as a serious illness in Sakellarion v. Judge & Dolloph (1995). In the

ruling, the court established that in order for an employee to be granted FMLA leave to take care

of a family member, the employee must be able to prove that their child must be completely

incapable of self-care, and that they are the employee that is most capable or most responsible

for providing said care.39 For an employee to take individual FMLA leave for themselves, they

do not need to be incapable of self-care.

37 Wisenhale, 8. 38 Ibed 39 Elaine V. Sakellarion v. Judge & Dolloph, LTD, P33, 337 (United States District Court for the Northern District of Illinois, Eastern Division, 1995), LexisNexis.

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One of the few cases to rule in the employee’s favor regarding taking FMLA leave to

care for a family member was Bryant v. Delbar (1998). The plaintiff, Martha Bryant, was

employed by Delbar Products from December 1983 until April 1996, when her employment was

terminated due to excessive absences.40 Under the company’s policy, an employee receives one

point each day they are absent. Upon occurring eight points in one year, the employee is

terminated.

On March, 26, 1995, Bryant’s son, Howard Bryant, was hospitalized with advanced

kidney failure, and remained in the hospital until March 29, 1995.41 Bryant requested time off

from her employer. Her request was denied and she was issued points for missing work. In April

of the same year, Bryant was issued further citations for driving her son to his doctor appoints

regarding his kidney failure. After this Bryant used her remaining vacation days to drive her son

to appointments without acquiring additional penalties. Bryant claims she should have been

granted leave under FMLA for these days, without incurring penalties and she should she have

had to use her own vacation time to care for her son.

The Court agreed with Bryant.42 In their opinion, the Court explained that the FMLA

defines a serious illness as a condition that requires an overnight hospital stay. However, Delbar

claimed that Howard was not incapable of self-care because he could feed and bathe himself.

Judge X explained that although Howard could indeed do these tasks that are basic for his life to

continue, he was incapable of cooking which was necessary for him to eat. Additionally, he was

incapable of taking public transportation for medical appoints required for his continued

40 Martha A. Bryant v. Delbar Products, INC. P33, 894 (United States District Court for the Middle District of Tennesse, Eastern Division, 1998), LexisNexis. 41 Bryant v. Delbar (1998). 42 Bryant v. Delbar (1998).

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recovery from his kidney failure. For these reasons, the Court found that Howard was incapable

of self-care, as caring for oneself involves much more than simply being able to put food to one’s

mouth or go to the bathroom without assistance. Since Howard was incapable of self-care,

Delbar was required to give Bryant excused leave under FMLA.

The FMLA was first drafted in 1984 to address a woman’s right to return to employment

after the birth of her child. However, as evidenced by the above cases, the scope of the FMLA

has expanded to include many medical conditions and situations, not just those pertaining to

pregnancy. Although newspaper editorial boards feared businesses would be forced to keep

incompetent employees, or other employees would suffer on behalf of co-workers overusing the

FMLA, the rulings of these cases demonstrate that the Courts did carefully consider the interest

of businesses. The sole purpose of the FMLA is to allow employees committed to their

companies, as evidenced by the work requirements that must be met before FMLA can be

applied, to leave work to care for serious medical conditions. These rulings also provide a further

protection for businesses, as these rulings affirmed an employer’s right to fire incompetent

employees and clearly defined serious illnesses as only those that absolutely prevent an

employee from working. Therefore, the fears that the FMLA hurt business and limit the

freedoms of business owners are unfounded: these rulings instead clearly established what rights

businesses have regarding hiring and firing employees in various medical situations, and

protected then protected businesses to do so.

Although men and non-pregnant women benefit from the FMLA, it is important to

remember that the FMLA was originally created to allow women to return to work if they so

desire after becoming a mother. The act, and the subsequent rulings, have protected working

mothers while also protecting the rights of businesses. Due to this legal framework, women have

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been able to reenter the workforce and have earned respectable positions, which would not have

been as easily obtained if they were not guaranteed the right to return to their positions. The

success women obtain in their work, and the confidence that they can have knowing they will be

continued to do their work, benefits the woman’s employer, and not just her. The FMLA

demonstrates that when the rights of minorities, such as pregnant women are protected, many

benefit.

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