Disclaimer! Disclaimer! This is not a political post. This is meant to be good, clean fun. But where current events meet the FMLA, I’m as giddy as a five-year old boy coming eye-to-eye with his first dump truck!
Unless you’ve been living under a rock the past week, or you plug your ears and go “la-la-la-la . . . I can’t hear you” every time 2016 presidential news echos over the airwaves, you know that Democratic presidential candidate Hillary Clinton is battling pneumonia.
Naturally, Hillary’s predicament raises some curious questions in this one-track FMLA mind:
First, can Hillary take FMLA leave for her pneumonia, and does it matter that she still keeps showing up to work? [Frankly, I found myself more fascinated by the John Lennon sunglasses she was sporting when she fell ill on Sunday.]
Second, is Hillary a “key employee” under the FMLA who does not need to be returned to her position?
Is Hillary’s Pneumonia a Serious Health Condition?
Assuming Hillary is otherwise qualified to take FMLA leave and her campaign a covered employer, she can take job-protected leave so long as her medical condition involves either:
- Inpatient care (i.e., an overnight stay in a health care facility); OR
- An absence from work for more than three consecutive calendar days and either
- two or more in-person visits to the health care provider within 30 days of the date of incapacity or
- one in-person visit to the health care provider with a regimen of continuing treatment, such as prescription medication or physical therapy.
Keep in mind: simply staying at home, drinking fluids, and staying in bed (even if exposed to decades old hits sung by longtime Clinton supporter Barbara Streisand) are activities which can be initiated without a visit to a health care provider and do not establish a serious health condition.
What about the fact that Hillary keeps coming to work? Aside from a quick visit to recuperate on Sunday at daughter Chelsea’s home, Hillary has continued her full campaign schedule, despite her illness. Having received medical documentation confirming her serious health condition, any other employer (besides, of course, a presidential campaign two months out from the election) would designate the FMLA leave and require Hillary to remain off work until she provided a fitness for duty certification. After all, she has pneumonia!
Is Hillary a “Key Employee” Who Can Be Denied Reinstatement to Her Position After FMLA Leave?
First off, Hillary ain’t going no where on her own campaign. But let’s suppose for a nanosecond that we lived in some bizarro world (which is not all that far-fetched this election season), and in an 11th-hour attempt to gain the nomination, Bernie Sanders convinced the Clinton camp to invoke the “key employee” exception and not return Hillary to her position. Would it work?
Under the FMLA’s “key employee” exception, the campaign could give her the boot so long as it could show that:
1. Hillary is among the highest paid 10 percent of all the employees on the campaign. (Ummmm . . . Is that really in doubt?)
2. Having to reinstate Hillary would cause substantial and grievous economic injury to the campaign’s operations. This is an overwhelming standard for any employer to meet, and the FMLA regulations even note that this test is significantly harder to establish than the “undue hardship” test under the ADA. In other words, an employer has to show it would be in a world of hurt because of a key employee’s reinstatement after FMLA leave. Given that she is the whole show herself, I *think* the campaign just might be able to show such an injury here.
Notice to “Key Employee” is Critical. Even if the campaign could satisfy the above factors, it still must provide Hillary written notice at the start of her FMLA leave explaining the potential consequences with respect to reinstatement and maintenance of benefits. If the campaign fails to do so, it cannot deny her reinstatement. Once the employer makes a determination that substantial and grievous economic injury will occur to its operations, the campaign must provide notice to Hillary, including the determination that her reinstatement will cause such injury, and the basis for the determination. If Hillary already has begun FMLA leave, the campaign still must provide FMLA leave but allow her a reasonable period to return to work in lieu of additional FMLA leave (again, so long as she is fit to return).
If Hillary does not return after receiving this notice, she still is entitled to take FMLA leave. If the campaign continues to find that this substantial and grievous economic injury still will occur, the campaign can deny reinstatement in writing and, like before, provide the basis for the determination. Keep in mind: the “key employee” provision of the FMLA does not allow the employer to deny FMLA leave, but only to deny reinstatement.
Hmmm, after all that, I’m no longer feeling like that five-year old with his new dump truck..