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ment that the employee is needed for such care and an estimate of the amount of time needed for
such care. If leave is because of the employee’s health condition, a statement that the employee is
unable to perform the functions of his or her employment should be included. Further information
also is needed if intermittent or a reduced-schedule leave is at issue.
The initial certificate may be from the patient’s doctor, obtained at the
patient’s (or employee’s) expense. If the employer doubts its validity, the
employer may require, at its expense, a second opinion by a health care
provider designated or approved by it. Where the second opinion differs from
the first, the employer may require, at its expense, a third opinion from a
provider approved by both it and the employee. The opinion of the third provider then is binding.
When all prerequisites and conditions are met, an employee, with certain limitations, is
entitled to 12 workweeks of leave during a 12-month period due to (1) birth of a child; (2) place-
ment of a child for adoption or foster care; (3) care for a spouse, child or parent due to a serious
health condition; (4) a serious health condition making the employee unable to perform his or her
duties, and/or (5) certain “qualifying exigencies” arising out of active duty in the Armed Forces by a
spouse, child or parent. (In addition, a spouse, child, parent or next of kin of a covered servicemem-
ber is entitled to 26 workweeks of leave during a 12-month period to care for the servicemember.)
Except certain highly-paid employees, one who takes FMLA leave is entitled on return to be
restored to the position held when the leave commenced, or to a position with equivalent pay,
benefits, and other terms and conditions of employment. In addition, FMLA leave may not result
in loss of benefits accrued prior to the leave, although the employee is not entitled to accrue benefits
while on leave, or to any promotion he or she might have received had leave not been taken.
Furthermore, the employer must continue group health coverage during the leave, although if the
employee fails to return he or she may be liable for such premiums.

An employee may sue the employer in federal or state court for interfering with or discriminating
against the exercise of FMLA rights or for interfering with proceedings or inquiries relating to the Act.
Successful employees may be awarded compensation and benefits lost, other monetary losses,
interest, reinstatement or promotion, and attorney fees, expert witness fees and costs. Unless the
court believes the violation was in good faith, “liquidated damages” equal to the monetary damages
plus interest also may be awarded, in effect doubling the damages as a penalty. The Secretary of
Labor also can enforce the FMLA.

In Franzen, a jury found that the defendant interfered with the plaintiff’s FMLA rights, but the
judge ruled he had not been damaged and dismissed the case. The Court of Appeals found that
plaintiff was not entitled to damages because he was either unable or unwilling to return to work at
the end of the 12 weeks and thus was not prejudiced by defendant’s interference. It also found that
the plaintiff was not entitled to attorney fees because FMLA requires a judgment for the plaintiff to
trigger attorney fees, and the jury verdict was not a judgment.

Note the FMLA does not prevent greater rights and benefits from being established else-
where, such as by employer policy or a collective bargaining agreement.

Linda\sharpoffice\sharpthinking\issue 12
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