Em ploy m ent an d L a b or L aw

Stress Leave
Under
the FMLA

Youre Stressing
Me Out!

By Natasha L. Wilson
and Keshia A. McCrary

Although a tricky
maze, employers can
successfully navigate the
FMLA and ensure that
they are appropriately
administering leave
polices for their genuinely
stressed-out employees
even while protecting
against FMLA abuse.

Youre stressing me out! This is becoming a constant

refrain in the workplace all across the country. So much so
that some employees feel the workplace is so stressful that
they need time off to cope. Complaints of workplace
stress to some health care providers have
even resulted in notes prescribing rest.
However, this doesnt mean that employees
are automatically entitled to leave under
the Family and Medical Leave Act (FMLA)
for stress.
Employers must be astute in addressing problematic employees seeking to use
workplace stress as an excuse to get out
of work. Balancing the real and prevalent issues of workplace stress with the
potential for abuse presents many issues
for employers in this uncertain economy.
Employers must also be alert to identifying and assisting employees with workplace stress in legitimate instances and
distinguishing employees seeking to use
and abuse the system.
What Is Workplace Stress?
Most of us experience stress on a daily basis
in our lives. So what differentiates workplace stress from the daily humdrum?
Anyone who works has likely experienced

job stress. In fact, a Gallup Poll found that

80 percent of American workers reported
feeling stress on the job and needing help
learning how to manage that stress. Workplace stress can be defined as the harmful
and emotional responses that occur when
the requirements of a job do not match
the capabilities, resources, or needs of the
employee. Job stress can manifest itself in
a number of ways and can also lead to poor
health and even injury.
Almost everyone agrees that job stress
results from the interactions of an employee
in the workplace as well as the conditions
of the work. There is, however, a divergent
view on the importance of a workers individual characteristics versus working conditions as the primary cause of job stress.
This divergence is important because it
suggests different ways to manage and prevent workplace stress.
Some believe that differences in individual characteristics, such as personality and
coping style, are most important in pre-

Natasha L. Wilson is a shareholder and Keshia A. McCrary is an associate in the Labor & Employment
Practice Group in the Atlanta office of Greenberg Traurig LLP. Both authors are active members of DRI
and its Employment and Labor Law Committee. Ms. Wilson and Ms. McCrary recently published Instant
Returns: The Benefits and Risks of Using Social Media in the Employment Process, in DRIs E-Discovery
Connection newsletter.

38 For The Defense February 2013

2013 DRI. All rights reserved.

dicting whether job conditions will result

in stress. In other words, what is stressful for one worker may not be stressful for
another coworker with a different personality or coping style. This school of thought
focuses on employees as individuals and
finding ways to help them cope with their
demanding job conditions as management
and prevention tools.
On the other hand, scientific evidence
also suggests that certain working conditions are stressful to most people regardless
of personality type. For instance, excessive
workload demands and conflicting expectations are certain conditions that would be
stressful across the board for any employee.
Accordingly, this school of thought focuses
on job redesign as the primary prevention
and management strategy for work-related
stress.
How Does Workplace Stress
Affect Employees?
How prevalent is this workplace stress? We
all experience stress, whether in our personal or professional lives, so what do employees really say about stress on the job?
According to the United States Department
of Health and Human Services National Institute for Occupational Safety and Health,
workplace stress indeed negatively affects
more than a quarter of the American workforce. Additionally, according to a survey
conducted by Northwestern National Life,
40 percent of workers reported that their
jobs arevery or extremely stressful. Further, a survey conducted by the Families
and Work Institute revealed that 26 percent of workers reported that they are often or very often burned out or stressed by
their work. Finally, a survey conducted by
Yale University showed that almost a third
of employees reported feeling quite a bit or
extremely stressed at work.
Those are just the more extreme numbers. Job stress is increasingly becoming a common and costly problem in the
American workplace leaving almost no
one untouched. According to Northwestern National Life, a quarter of all employees view their jobs as the primary stressors
in their lives. A Princeton Survey Research
Associates survey also revealed that 75
percent of employees believe that workers today have more on-the-job stress than
workers a generation ago.

Employees today more than ever are

suffering worker intensification, a term
referring to increasing demands placed
on workers asked to do more with the
same amount of time and resources. Due
to the economic recession, employers are
paring down staff and assigning extra
duties to their remaining workers without additional pay or resources. While
these employees left behind are grateful
for their employment, these workers likely
have not had a pay raise in the past few
years, face uncertainties with their 401(k)s,
and struggle continually to meet increasing
food, utility, and gas costs.
This worker intensification is indeed
affecting most of the workforce. According
to a Workplace Options survey, more than
half of employees surveyed have taken on
additional job responsibilities as a result of
the recession. Of those employees taking on
additional duties, 70 percent have done so
without any pay increases.
How Much Does Workplace
Stress Cost?
We know that workplace stress affects more
workers today than any other generation.
But how does workplace stress manifest
itself in costs? According to data from the
Bureau of Labor Statistics, workers who
take time off from work because of stress,
anxiety, or a related disorder will be off the
job for about 20 days per year. This translates into an annual loss to the employer
of $3,600 for each hourly employee and
$2,650 for each salaried employee.
Workplace stresses are also costing
employers a lot more than lost wages due
to employee absenteeism and attendant
health care costs. The New York Times
reported on Sept 5, 2004 that Workplace
stress costs the nation more than $300
billion each year in health care, missed
work and the stress-reduction industry
that has grown up to soothe workers and
keep production high. That $300 billion
price tag comes from the American Institute of Stress (AIS), which also attributes
this high price tag to direct medical, legal,
and insurance costs, workers compensation awards as well as tort and FELA [Federal Employers Liability Act] judgments.
Workplace stress may also lead to workplace violence, which has become increasingly commonplace in almost every

occupation. According to the Bureau of Justice Statistics, 1.7 million people were victims of violent crimes while working or on
duty in the United States each year from
1993 through 1997. More alarming, the
Bureau of Labor Statistics Census of Fatal Occupational Injuries reported 13,827
workplace homicide victims between 1992
and 2000. And anecdotes and the media in-

Excessive workload
demandsand conflicting
expectations are certain
conditions that would
be stressful across the
board for any employee.
creasingly label workplace incidents with
phrases such as going postal, desk rage,
and phone rage.
How Do Employers Feel About
Workplace Stress and FMLA
Intermittent Leave?
While companies recognize that workplace
stress exists among their employees, they
seem to struggle to balance empathy for
employees genuinely affected by workplace
stress while also seeking to prevent other
employees from abusing the system. World
atWork, an association of human resource
professionals from Fortune 500 companies
and other leading organizations, released a
survey, FMLA Practices and Perspectives,
of WorldatWork members.
From that survey, 42 percent of World
atWork organizations reported that the
potential for or suspicion of employee
abuse causes extreme difficulty maintaining intermittent FMLA leave. Specifically,
more than half of FMLA absences on an
intermittent basis are unscheduled rather
than scheduled. Further, the overwhelming
majority of intermittent leave-user employees are providing little, if any, advance
notice to their employers of their need to
be absent. Finally, tracking intermittent
leave proves to be an ongoing challenge for
For The Defense February 2013 39

Em ploy m ent an d L a b or L aw

employers. Over 85 percent of employers

find tracking intermittent leave to be moderately to extremely difficult.

the normal 12-month period established by

the employer for FMLA leave for qualifying exigencies arising from the fact that the
employees spouse, son, daughter, or parent
What Does the Family Medical
is on active duty in the National Guard or
Leave Act (FMLA) Authorize?
Armed Forces Reserves or has been notiThe FMLA entitles an eligible employee fied of an impending call or order to active
to take up to 12 weeks of unpaid, job- duty in support of a contingency operation.
protected leave. This leave may be taken
What Constitutes a Serious Health
Condition Under the FMLA?

Employees todaymore
than ever are suffering
worker intensification, a
term referring to increasing
demands placed on
workers asked to do more
with the same amount
of time and resources.
intermittently, on a reduced schedule, or
as a block in a 12-month period. An eligible
employee is someone who has worked for
the employer for at least 1,250 hours during
the previous 12-month period. FMLA leave
may be taken for specified family and medical reasons, including the birth of a child,
adoption, to care for an immediate family
member with a serious health condition, or
because the employee is unable to perform
the functions of his or her position due to
a serious health condition.
The FMLA also entitles eligible employees to take specific leave related to duties
for family members in the armed services. Specifically, an eligible employee that
is a spouse, son, daughter, parent, or next
of kin of a covered service member, a current member of the Armed Forces, with a
serious injury or illness may take up to 26
workweeks of unpaid leave during a single
12-month period. If an eligible employee
uses FMLA to care for a covered service
member, the serious injury or illness must
be one suffered in the line of duty or active
duty. An eligible employee may also take
up to 12 workweeks of unpaid leave during

40 For The Defense February 2013

A serious health condition is an illness,

injury, impairment, or physical or mental
condition that involves either inpatient care
in a hospital, hospice, or residential medical care facility. Any illness requiring hospitalization overnight will be considered a
serious health condition. Also, any period
of incapacity or subsequent treatment connected with the inpatient care will be protected under the FMLA. Incapacity includes
the inability to work, to attend school, or to
perform other regular daily activities due
to a serious health condition, or the treatment or recovery from incapacity.
A serious health condition may also involve continuing treatment by a health care
provider. To qualify as a serious health condition, the continuing treatment must include a period of incapacity for more than
three consecutive calendar days, and any
subsequent treatment relating to the same
condition must involve either (1)treatment
two or more times, within 30 days of the
first day of incapacity, absent extenuating
circumstances; or (2)treatment by a health
care provider on at least one occasion, resulting in a regimen of continuing treatment under the supervision of a health care provider.
A combination of conditions may qualify as a serious health condition. A serious health condition is not confined to one
single, specific condition but may include
a compilation of conditions that constitute
one condition in their totality. In fact, several temporally linked diagnoses, none of
which alone rises to the level of a serious
health condition, can constitute a serious
health condition if taken together. See, e.g.,
Price v. City of Fort Wayne, 117 F.3d 1022,
1023 (7th Cir. 1997).
Can Stress Qualify as a Serious
Health Condition Entitling an
Employee to FMLA Leave?

Whether stress qualifies as a serious

health condition under the FMLA depends

upon the circumstances.
Generalized Complaints of Feeling
Stressed Will Not Suffice as a
Serious Health Condition Notice

Generalized complaints of stress, fatigue,

sadness, or sickness do not qualify as a serious health condition under the FMLA and
will not suffice to put an employer on notice
of a serious health condition. See Maitland
v. Employease, Inc., No. Civ.A. 1:05-cv-0661,
2006 WL 3090120 (N.D. Ga. Oct. 13, 2006).
In the Maitland case, Employease, Inc.,a
human resources software and services
company, initially hired plaintiff Robyn
Maitland as the manager of training and
eventually promoted her to the director of
education services in 2000. Employease later
cut its workforce through a series of layoffs
from 2001 through 2003 thereby giving
more responsibilities and duties to Maitland
and her two subordinates. Maitland then
complained that she felt overwhelmed by
her workload and made several requests for
additional help. Although Employease provided Maitland with some of her requested
additional support, Maitland then had a
number of interpersonal conflicts with coworkers and exhibited inappropriate behavior and communications with management.
Maitland eventually sought counseling
and complained to her licensed professional
counselor that she experienced stress associated with the volume of work and an e-mail
she received from a manager. Maitland was
then diagnosed with adjustment disorder
and depression. Maitland, however, never reported her depression to Employease nor did
she disclose her medical treatment due to her
job-related stress. Instead, she told her supervisor that she felt psychologically stressed
and spoke about her severe, fatigue, and inability tovery difficult for me to come to
work, that something was wrong with me.
The court held that the Maitlands complaints would give Employease no reason to believe that Maitlands request for
time off related to anything other than these
generalized complaints of stress. Maitland, 2006 WL 3090120, at *15. As such,
Maitland was not eligible for FMLA leave.
U.S. Department of Labor Regulations
Require Other Conditions

The U.S. Department of Labor (DOL) indeed

speaks to stress as it relates to the FMLA.

Mental illness resulting from stress or
allergies may be serious health conditions,
but only if all other conditions are met. 29
C.F.R. 825.114(c). Courts have accordingly
noted that 29 C.F.R. 825.114(c) evinces the
DOLs interpretation that stress in and of
itself is not a serious health condition.
Stress Alone Is Not a Serious Health
Condition Under the FMLA

For instance, the U.S. District Court for

the Northern District of Ohio recently
found that stress, without any evidence
of mental illness cannot constitute a serious health condition. See Deleva v. Real
Estate Mortgage Corp., No. 1:04cv1299,
2007 U.S. Dist. Lexis 45136, at *39 (N.D.
Ohio June 21, 2007). In the Deleva case,
the plaintiff, Deleva, testified that he experienced stress and uncertainty over a
failed business deal, not as a consequence
of a diagnosed medical condition or working under a medical condition. Citing 29
C.F.R. 824.114(c), the court held [t]he
mere incantation of the word stressas
presented in this casedoes not create a
federal case. See id. The court further indicated that because Deleva failed to come
forward with any medical evidence that his
claimed inability to work was because of a
diagnosed medical condition, his FMLA
claim failed as a matter of law.
Do Mental Health Conditions
Resulting from Stress Constitute
Serious Health Conditions?

On the other hand, the U.S. District Court

for the District of Minnesota held that
stress that causes a mental health condition constitutes a chronic serious health
condition. See Pierce v. Teachers Fed.
Credit Union Foundation, No. 09-780 (JNE/
FLN), 2010 WL 550998 (D. Minn. Feb.
9, 2010). In the Pierce case, the plaintiff,
Pierce, previously sought and was granted
FMLA leave for cancer treatment. Within
a year, her cancer went into remission,
and she returned to work. However, when
she returned, Teachers Federal hired a
new chief executive officer who repeatedly informed Pierce that the company
would experience a lot of changes and that
her position might be eliminated. As a
result, Pierce sought treatment from several health care professionals after suffer-

ing anxiety and stress during the daytime,

along with symptoms [from the cancer
medication, including] bone pain, muscle[]
pain, [and] aches.
During the interactive process, Pierce
discussed with Teachers Federal her fear of
working reduced hours and losing her benefits. Pierce was then informed that stress
resulting from not having enough work
was not covered by FMLA, which caused
Pierce to have a panic attack. Teachers Federal asked Pierce to go home that day and
the next day informed her that her position
had been eliminated.
Based upon those facts, the court found
that Pierce had to see a doctor every six
months to refill her anti-anxiety and antidepressant medications and that her mental health conditions may have resulted in
episodic periods of incapacity, such as during panic attacks. Accordingly, the court
found that a reasonable fact finder could
determine that Pierces mental health conditions resulted from stress and could constitute chronic serious health conditions
thereby precluding a summary judgment.
Stress-Related Depression

The U.S. District Court for the Middle

District of Florida recently found that
an employees stress-related depression
raised a question of fact as to whether the
employee had a serious medical condition under the FMLA. See Hurley v. Kent of
Naples, Inc., Nos. 2:10-cv-334FtM-29SPC;
2:10-cv-752-FtM-29DNF, 2011 WL 2217770,
at *7 (M.D. Fla. June 7, 2011). The plaintiff, Hurley, was medically diagnosed with,
among other things, depression and anxiety related to his job. Hurleys health care
providers recommended that Hurley take
time off work to manage his stress. The
court found that while the evidence at
least raised a question about whether Hurleys stress-related depression was a serious
health condition, Hurley did not present
sufficient evidence showing that he was
incapacitated due to his depression, which
precluded a summary judgment for Hurley.
Stress-Related Insomnia
and Anxiety Attacks

The U.S. District Court for the Middle District of Georgia also found that job-related
stress causing insomnia, anxiety attacks,
and depression raised a question of fact

about whether the employee had a serious medical condition under the FMLA.
See Snelling v. Stark Props., No. 5:05CV46
DF, 2006 WL 2078562, at *9 (M.D. Ga. July
24, 2006). After the plaintiff, Snelling, requested more responsibilities, her employer,
JPC, granted additional job duties to Snelling. Due to issues with her supervisors,
Snelling sought medical treatment for her

While companies
recognize that workplace
stress exists among their
employees, they seem to
struggle to balance empathy
for employees genuinely
affected by workplace
stress while also seeking
to prevent other employees
from abusing the system.
anxiety attacks, insomnia, and depression.
Snelling proffered evidence that she was
under a regimen of continuing treatment
consisting of multiple prescription medications to combat these symptoms. Accordingly, the court held that Snelling submitted
enough information to notify her employer
that she may have been suffering from a serious health condition.
Stress-Related Conditions
and Physical Symptoms

The Seventh Circuit also found that job-

related stress manifesting itself in physical
symptoms may constitute a serious medical condition under the FMLA. Price v.
City of Fort Wayne, 117 F.3d 1022 (7th Cir.
1997). Price worked for the City of Fort
Wayne for almost 10 years until she was
terminated for excessive absences. Price
submitted an affidavit from her doctor stating that she suffered from an assemblage of
diagnoses including elevated blood presFor The Defense February 2013 41

Em ploy m ent an d L a b or L aw

sure, hyperthyroidism, back pain, severe

headaches, sinusitis, infested cyst, sore
throat, swelling throat, coughing and feelings of stress and depression. Prices doctor further attested that Price came to his
office in an alarming condition, she was
on the edge of a break-down, both physically and mentally, and there was no way
[that Price] could perform her job, due to

The FMLAspecifically
allows an employer to
question employees about
requested absences
to determine whether
the FMLA applies.
her mental and physical state, and to
attempt to continue to work in her condition would be seriously detrimental to her
health.
The district court held that Prices multiple diagnoses did not rise to the level of a
serious health condition as a matter of law
and granted a summary judgment to the
City of Fort Wayne. The Seventh Circuit
reversed the district courts grant of a summary judgment, holding that while such
multiple diagnoses may not rise to the level
of a serious medical condition as a matter
of fact, such diagnoses were sufficient to
survive a summary judgment.
Which FMLA Entitlement
Causes the Most Problems?
While Congress enacted the FMLA to
attempt to balance the demands of the
workplace with the needs of families, certain bad apples have found opportunities
to exploit the FMLA in the workplace. The
FMLA has become the single largest source
of uncontrolled absences and, thus, the single largest source of all the costs that those
absences create: missed deadlines, late
shipments, lost business, temporary help
costs, and overworked staff.
Even the DOL notes that the most serious FMLA problems arise with intermit-

42 For The Defense February 2013

tent leave for which employees obtain

certification that they suffer ongoing medical conditions. While the original intent
of intermittent leave was to accommodate employees with chronic ailments that
might occasionally flare up and require
minimal time, this type of leave has proved
vulnerable to abuse. A National Association of Manufacturers survey revealed that
more than half of the requests for intermittent leave were made either on the day of
the leave, after the leave was taken, or without any notice whatsoever. Moreover, the
employer survey respondents reported having to absorb significant operating costs in
lost productivity and missed deadlines due
to the intermittent leave. In addition to the
tangible losses such as unwanted overtime
and loss of vacation, abused intermittent
leave has additional intangible effects on
productivity, morale, turnover, and business retention.
How Can Employers Curb
Employee FMLA Abuse?
Given the very real medical problems
that job-related stresses induce, as well as
employers legitimate business concerns,
employers should remain alert to ensuring FMLA-compliance while also protecting against FMLA abuse. An employer
should know the leave triggers and recognize, based on the information that it has,
when an employees absence may qualify as
FMLA leave and ask for more information
if appropriate. An employer should also
first verify and confirm that an employee is
eligible for FMLA leave. So, what are some
suggested best practices when dealing with
FMLA leave requests in general?
Enforce company leave policies. An employer should work with managers to ensure
that the companys leave policies, including
an FMLA policy, are current and uniformly
enforced and ensure that managers are familiar with the FMLA paperwork. An employer must remain compliant with both
federal FMLA laws and constantly changing
state and other medical leave requirements.
State law compliance is crucial for companies that have multiple locations. When in
doubt, seek advice from outside counsel.
Train management. Supervisors do not
need to be experts on the FMLA and comparable state sick and medical leave laws,
but they do need to understand the basics

of the law, including that employers are

prohibited from interfering or retaliating against employees who take FMLA
leave. Employers should also be aware that
the provisions of the FMLA arm employees with two causes of action they can
bring against an employer (1)an interference claim which makes it unlawful for
any employer to interfere with, restrain,
or deny the exercise of or the attempt to
exercise any right provided by the FMLA,
see 29 U.S.C. 2615(a)(1); and (2) a retaliation/discrimination claim found in 29
U.S.C. 2615(a)(2) and 2615(b) of the statute
which prohibits employers from discharging or discriminating against employees
for opposing any practice made unlawful
by the FMLA. Courts analyzing the merits of a retaliation/discrimination claim
rely on the traditional anti-discrimination
burden-shifting standards as articulated
in McDonnell Douglas and Price Waterhouse. However, analysis of an interference claim does not require discriminatory
intent. Rather, a plaintiff alleging an interference claim generally need only show that
he or she was entitled to benefits under the
FMLA and was denied them.
Put it in writing. Require employees to
submit a leave request form for all absences.
When an employee calls in sick or requests
a day off for any reason, require a written
request. While a covered employer cannot prohibit verbal FMLA leave requests,
requiring an employee to followup by submitting a written request can deter abuse.
An employer has a right to question
employees requesting FMLA leave. When

faced with leave requests an employer

should ask all necessary and relevant questions, especially when an employees reason for requesting the leave is unclear.
The FMLA specifically allows an employer
to question employees about requested
absences to determine whether the FMLA
applies. Consider preparing a standard list
of questions for supervisors to ask employees seeking FMLA leave on the basis of purported illness. An employee who chooses
not to respond to reasonable questions
from an employer about not only the need
for time off, but also the nature of the need
for leave and the timing and duration of the
absence, may lose his or her right to FMLA
protection.
Stress Leave, continued on page 82

Stress Leave, from page 42

Require medical certification. One of

the best tools that an employer has in the

quest to combat FMLA abuse is the medical certification form. Under the FMLA,
an employer is permitted to obtain necessary medical information to determine
whether an employee suffers from a serious health condition, thus qualifying him
or her for FMLA leave. If the employee
does not provide the medical certification,
then the absence will not be considered
FMLA leave.

Use clarification or recertification mechanisms. If the information provided in a

medical certification is insufficient because

it is vague, ambiguous, or otherwise nonresponsive, an employer has a right to require
that the employee provide additional information. An employee who refuses to allow

the employer to seek clarification may be

denied the leave.

Consider obtaining permission to contact

an employee. The FMLA generally permits

an employer to request periodic reports on

the employees status and intent to return
to work and recertifications. Nevertheless, an employer must fight the tendency
to take contact with an employee to the
extreme. Employers should remember that
FMLA leave is indeed unpaid leave, and
so communications with an employee on
FMLA leave may entitle that employee to
paid wages. Accordingly, employers should
centralize and monitor communications
and make sure that such communications
are limited. An employer might even consider securing an employees authorization to contact him or her during his or her
FMLA leave regarding work-related issues.

82 For The Defense February 2013

Consider creative, preventative strategies to curb abuse. Employers may also

consider creative approaches to combat

abuses still within the parameters of the
FMLA. For instance, employers might
remind or request that employees schedule their medical treatments outside of the
work day. Employers may also simply add
ability to handle stress to a specific positions job description. An employer could
even transfer an employee to another position if the intermittent leave is too disruptive to the position.
Although a tricky maze, employers
can successfully navigate the FMLA and
ensure that they are appropriately administering leave polices for their genuinely
stressed-out employees even while protecting against FMLA abuse.