FMLA may cover some independent contractors

A federal appeals court has cast doubt on the longstanding belief that independent contractors are never “employees” under the FMLA.

Recent case: Larry worked as a hospital pathologist under a independent contractor agreement. It allowed him to provide substitute pathologists when he was absent.

Larry underwent a heart transplant. When his contract was later canceled, he sued, alleging that he had been terminated in violation of the FMLA.

The court looked at the definition of employee in the FMLA and also noted that Larry’s contract allowed him time off beyond the FMLA minimum. Therefore, it said, his status as an independent contractor rather than an employee did “no violence to the ‘economic realities’ underlying the FMLA.” It’s an open question whether a contract with no provision for time off would violate the FMLA under this reasoning. (Alexander v. Avera, No. 13-2592, 8th Cir., 2014)