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Overview of the Family & Medical Leave Act
Our Firm would be happy to assist your organization with FMLA
compliance
issues.
To contact us, write to: Mattlawfrm@aol.com
or click on Contact Us for other ways
to
contact us.
Basic Provisions of FMLA:
The FMLA allows covered employees to take up to 12 weeks (480
hours) of UNPAID
leave if they have a serious health condition or need to care for a
family
member with such a condition, and requires their reinstatement to a
substantially
equivalent job on their return.
What Companies Are Covered:
The Act applies to any company which has 50 or more employees.
However, an
employee is excluded from coverage under the Act (even if he works for
an
employer with over 50 employees total) if the employee works at a job
site
where there are less than 50 employee and the company also has less
than
50 employees within a seventy-five mile radius of the job site.
What Employees Are Eligible:
Employees are eligible for leave if they have worked for the
company for
at least 12 months, and have put in at least 1,250 hours of work in the
prior
12 months. In other words, an employee is not eligible for leave in the
first
year of employment. Likewise, an employee is not eligible for leave if
the
employee works only half-time, or if the employee only recently has
returned
after an extended layoff or prior leave (so that the employee has not
worked
1,250 hours in the prior 12 months).
Reasons for Leave:
An employee who meets the minimum service requirements is
eligible for up
to 12 weeks of unpaid leave in any 12-month period due to (1) the birth
of
a child (within the preceding 12 months); (2) the adoption of a child
(within
the preceding 12 months); (3) the care of a parent, spouse or child
with
a serious health condition; (4) to receive care for the employee's own
serious
health condition.
Definitions:
The Act defines a "parent" as being either a biological parent
or a person
who stood "in loco parentis" to the employee (presumably including
stepparents
or even grandparents under some circumstances). A "child" is a
biological,
adopted, foster, or step child (or other child for whom the employee is
guardian
or stands in loco parentis. The child must be under the age of 18, or,
if
over 18, must have a serious disability which renders the child
incapable
of self care.
The Act defines a "serious health condition" as a serious
condition (mental
or physical) which requires inpatient care or continuing outpatient
care
by a healthcare provider. The Act itself contemplates that the employee
will
need to miss work on a recurring basis for more than a few days, and
the
legislative history reflects that the Act was not intended to apply to
short-term
conditions (i.e, kids with measles). However, the Regulations issued by
the
Department of Labor take a very broad view of what is a serious health
condition,
and consider a "serious health condition" to include any illness which
disables
the employee (or relative) for more than three calendar days. The Regs
also
treat subsequent follow-up care for the same condition as falling
within
the Act. In addition, in the case of chronic health conditions (such as
asthma,
migraines, diabetes, etc.), the Act considers all such conditions to be
"serious
health conditions" and no minimum calendar days of absence are required
for
FMLA to apply. All absences due to pregnancy also are automatically
considered
to be for a "serious health condition", including doctor visits for
prenatal
care. See 29 CFR § 825.114.
Where the leave is desired to care for a relative, the
physical or mental
condition of the relative must render that person unable to conduct
their
regular daily activities. Notably, if the relative only needs emotional
support,
the Regs permit the absence to be covered (assuming a doctor is willing
to
certify that the patient needs this support).
Documentation:
An employer is permitted to obtain a certificate regarding the
nature of
the condition; its expected duration; and the date of commencement of
the
condition. If the leave is to care for a relative, the employer also
can
require a certification that the services of the employee are necessary
to
provide such care. The employer further can require periodic reporting
regarding
the status of the employee or relative, and can obtain a second opinion
where
the validity of the certification provided by the employee is in doubt.
The
company must pay for any second opinion, and the company may not use a
physician
who is employed by the company on a regular basis to provide that
second
opinion. Where there is a conflict of opinion between the employee's
physician
and the company's physician, the company and the employee must pick a
tie
breaking physician for a third opinion (with the company picking up the
tab
for this third opinion). The third opinion is considered final and
binding
on both parties.
In addition, the company is entitled to obtain a medical
release when the
employee seeks to return to work, as a condition of allowing such
return.
However, the Act provides that this provision does not modify any of
the
provisions of the ADA or any other federal/state anti-discrimination
statute.
As a result, care should be taken in refusing rehire to a disabled
employee
whose disability can be accommodated without an undue hardship on the
conduct
of the business.
Notice By Employee:
In order to qualify for leave, the employee must provide 30
days of advance
notice of the anticipated leave, unless it is impracticable to do so.
For
instance, where a woman goes into premature labor, she obviously is
unable
to give notice of the precise time of commencement of her leave. In
such
circumstances, the employee is required to give as much notice as
reasonably
can be given. Where the absence is foreseeable and can be scheduled
(i.e,
anticipated knee surgery to repair on old football injury), the
employee
is required to "make a reasonable effort to schedule the treatment so
as
not to disrupt unduly" the employer's operations. In such cases,
providing
of at least 30 day's notice appears to be mandatory.
Married Coworkers:
There are limits on the amount of leave which may be taken by
two parents
working for the same company. Where leave is requested to care for a
newborn
or to care for a sick parent, the couple can be limited to combined
maximum
of 12 weeks of leave. This limit does not apply in the case of leave
needed
to care for a sick child, or to care for an ailing spouse.
Compensation Issues:
If the company has a paid leave plan, the company is entitled
to substitute
paid leave for unpaid leave to the extent that the employee has accrued
paid
leave. Thus, the employee can be forced to apply paid vacation,
personal
days and sick days to the leave period (which reduces the number of
unpaid
leave days required). This requirement applies regardless of whether
the
leave is required for the illness of the employee or to care for a
relative.
However, the company is not required to allow the employee to apply
paid
sick leave where the employee is absent to care for another. The Act
specifically
provides that the company does not have to expand its paid leave
policies
to provide for such additional paid leave, unless the company
voluntarily
opts to do so.
Notably, an employer is permitted under FMLA to dock an exempt
employee (or
a salaried employee who is nonexempt) for time spent on FMLA leave,
without
running afoul of the Fair Labor Standards Act. There are special rules
which
apply to this docking, which are beyond the scope of this article.
Companies
faced with this issue would be wise to consult their labor counsel, and
closely
follow the procedures set forth in the regs for such docking.
Reinstatement Rights:
Rank-and-file employees are entitled to automatic
reinstatement either to
their previous jobs or to substantially equivalent jobs. Such
reinstatement
includes continuation of all benefits which had accrued prior to the
leave.
However, it does not require that the leave time be treated as time
worked
for benefit calculations.
On the other hand, a highly-compensated employee can be
replaced while out
on leave and denied rehire, if it is essential to the operation of the
business
that a replacement be hired. Such an employee only may be refused
rehire
if he is among the top 10% income bracket of all employees in the
75-mile
radius and the cost of reinstatement would result in
"substantial
and grievous economic injury to the operations of the employer". If the
company
determines that it cannot reinstate a highly-compensated employee, it
must
notify the individual promptly regarding this decision. The
highly-compensated
employee still is entitled to other benefits associated with the leave,
including
the right to continuation of medical benefits. Thus, the only change is
that
such an individual need not be reinstated if the job cannot be held for
him/her
while out on leave.
Intermittent Leaves:
In addition, the Act contains a little-noticed provision which
requires the
company to provide "intermittent" leave where required due to the
employee's
own health care problems or those of a covered relative. For instance,
if
the employee or the relative requires chemotherapy or dialysis twice
per
week, the company must allow the employee to take off in order to
obtain
or provide such care. The Act provides that taking of such intermittent
leave
"shall not result in a reduction in the total amount of leave to which
the
employee is entitled ...beyond the amount of leave actually taken".
Under
the DOL regs (29 CFR § 825.203), FMLA leave time for intermittent leave
is granted in one hour increments and an employee may not be required
to
take off more time than is actually required. Thus, for instance, if an
employee
wishes to take off two hours a day, twice per week, to take a child for
allergy
shots to treat an asthma problem, the employee is only using 4 hours of
FMLA
leave per week. Because the employee has 480 hours of FMLA leave per
year
(60 days x 8 hours = 480 hours), it is obvious that the employee will
not
exhaust FMLA leave during the year even if the employee does this every
week
(4 hrs x 52 weeks = 208 hours). Indeed, the employee would have more
than
sufficient FMLA time left to take a grandmother for dialysis twice per
week,
and miss two hours per day on two other days of the week (thus working
only
6 hours per day for 4 days per week). This can prove to be an
administrative
nightmare for the employer, and a real scheduling burden.
The only thing which an employer can do under the Regs to try
to deal with
these problems is to move the employee to another job where the
employee
requires intermittent leave (but only if the job has equivalent pay and
benefits), if such a move will permit the company to better accommodate
the
intermittent absences. This provision provides scant comfort to a
company
forced to cope with trying to hire a temporary worker for a few hours
per
day.
Benefit Continuation:
While on leave, the employee is entitled to continuation of
health insurance
coverage on the same basis and "under the conditions coverage would
have
been provided if the employee had continued in employment continuously
for
the duration of the leave". Thus, if the company normally pays for the
entire
cost of health insurance, the company would continue to be liable for
the
entire cost of health insurance for the employee while out on leave.
However,
if the employee fails to return to work at the conclusion of the leave,
the
company can recover the premiums paid unless the failure to return is
due
to circumstances beyond the control of the employee. For example,
premiums
cannot be recovered by the company in situations where there is
continued
serious illness of the employee, or birth of a seriously ill child
while
out on childbirth leave (thereby necessitating continued absence to
care
for the child). Notably, the DOL regs severely limit the right of an
employer
to cutoff insurance coverage if the employee does not pay his share of
premiums
during the leave period (29 CFR § 825.212-213). While coverage can be
suspended if premiums are more than 30 days overdue, the rules are so
complex
that it is really not worth doing.
If the employee does not return from leave, the rules become
even more complex.
Under IRS COBRA regs, failure of an employee to make payments of
his/her
portion of premiums during the FMLA leave does not affect the right of
the
employee to COBRA coverage at the time that the employee is determined
to
be unable to return and does not constitute a "triggering event" under
COBRA.
Thus, if the employee has failed to contribute his/her portion of the
premiums
during the FMLA leave, and later is terminated due to expiration of the
FMLA
leave period, the employee must be given a COBRA notice upon
termination.
At that point, the employee is entitled to receive full COBRA coverage,
even
though the employee has an outstanding debt owed to the company for
unpaid
insurance premiums. The IRS regs specifically state that: "the right to
COBRA
continuation coverage cannot be conditioned upon the employee's
reimbursement
of the employer for premiums the employer paid to maintain coverage
under
a group health plan during FMLA leave." Failure to provide a COBRA
notice
could make the employer self-insured for any claims which otherwise
would
have been covered by the plan (as employees may claim that they would
have
opted for coverage if they had received the notice especially if they
have
had an expensive accident in the interim). An employer also is able to
recover
premiums paid for an employee's health insurance coverage if he fails
to
return without good reason.
Enforcement:
The Act is enforced by the Department of Labor, and also can
be enforced
by private suit. Procedures and remedies are comparable to those under
the
Fair Labor Standards Act (backpay, lost benefits or other damages,
interest
on sums owed, attorney fees, and liquidated damages for "willful"
violations).
Suit normally must be filed in 2 years, but the limitations period is
extended
to 3 years for willful violations. Suit is brought in state or federal
court.
It also is unlawful to retaliate against any person for exercising any
right
under the Act, or to retaliate against someone for bringing a charge or
assisting
another in bringing a charge under the Act.
Important Additional Regs on FMLA
Rights:
Even if the employee has lots of absences which are not
covered by FMLA,
it can be a violation of FMLA to terminate the employee for excess
absences
IF any FMLA-covered absences are included in the total. Furthermore,
under
the DOL regs, if the Company fails to send the employee a notice within
two
days which advises the employee that the absence is being counted
towards
FMLA time, the DOL takes the position that the absence cannot be
counted
towards the 12 week limit. This DOL position has been called into
question
by several courts - and it seems likely that the Courts will use common
sense
in deciding how absence should be credited towards leave time (as, in
many
cases, nobody will know initially if the condition is truly serious or
not
- a simple headache could be due to sinus problems, stress or a brain
tumor,
for example).
DOL takes the position that, where the Company's policies do
not specify
how a one year period is calculated (for instance, twelve consecutive
months
counted back from the time of the most recent absence), then the
employee
may be entitled to attack a discharge for exceeding FMLA leave time if
a
different method of counting the leave would have not resulted in
discharge. The Regs require the employer to provide notice to the
employees
of the method which it uses to calculate FMLA leave time. An employer
has
several options, including using a calendar year period; a fixed year
period
(like a fiscal year or anniversary date year); or "roll forward"
method,
starting from the date of the first FMLA absence; or even a "rollback"
method,
which looks backwards at all absences from the date of the last
absence.
If no method is adopted, the DOL will use the method which is MOST
favorable
to the employee. Where the method is changed, the company must give 60
days
notice of the change and cannot penalize anyone with absences during
this
60-day period if the old method would have allowed the absence. Thus,
where
the employee missed twelve weeks of work to care for his pregnant wife,
then
missed 10 more weeks in the next calendar year (but within a one year
period
of his first leave), the Court refused to dismiss his lawsuit. See McKiernan
v. Smith-Edwards-Dunlap Co. (Case No. 951175, ED Pa. 1995).
The full DOL Regs can be found in the Code of Federal
Regulations at
the U.S. House of Representatives Website. They also are widely
available
on the internet.
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