Fallon Dungan
ABSTRACT
Congress passed the Family and Medical Leave Act of 1993 (FMLA or the “Act”) for the purpose of giving employees job security and a means of taking medical and other necessary leave. However, when the FMLA was enacted, employers did not realize that they would be forced to make major, and uncomfortable, decisions regarding medical leave: is the employee suffering from a serious ailment, or is he or she deceitfully taking advantage of an Act that was intended to aid workers truly in need of sick leave? With more employees claiming stress as a reason for seeking FMLA leave, employers struggle to ascertain whether stress fits within the FMLA’s definition of a “serious health condition” while balancing the potential for FMLA abuse.
The “serious health condition” provision of the FMLA has several flaws that complicate the categorization of conditions such as stress that vary in duration and severity and are difficult to diagnose. Additionally, employers are not statutorily required to obtain certification from employees’ doctors to validate their medical conditions and their need for leave. Employers are also prohibited from making certain types of direct contact with employees’ doctors, which limits employers as to the amount and depth of information they may obtain when attempting to certify their employees’ alleged medical conditions. Moreover, if litigation arises, the FMLA is silent as to whether expert medical testimony is required to back up an employee’s claim.
These issues, in addition to the discrepancies in how courts interpret the FMLA when employees seek leave for stress, put employers at greater risk for FMLA abuse and cause them to expend significant resources investigating and litigating FMLA claims. This Comment will suggest the following amendments to the FMLA to resolve these issues: (1) require that employers obtain medical certification in all cases; (2) permit employers to contact employees’ health care providers directly, with certain limitations; and (3) require expert medical testimony when litigation over stress-related and other FMLA claims arises.