FMLA Leave Issues

Posted by BAS - 16 August, 2012

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Employers subject to the Family and Medical Leave Act ("FMLA") understand the complexities of FMLA compliance. This article provides an overview of the FMLA rules.

Application

Generally, the FMLA applies to any private employer who employs 50 or more employees within a 75-mile radius. The FMLA also applies to public employers without the 50-employee requirement.

Eligible Employee

The FMLA allows an eligible employee (one who has been employed by the employer for the previous 12 months and has worked at least 1,250 hours during that 12 month period), to take unpaid, job-protected leave for certain family and medical reasons. There are special eligibility provisions for airline flight crew members.

Eligible employees are entitled to

  • Twelve workweeks of leave in a 12-month period for:

◦ the birth of a child and to care for the newborn child within one year of birth;

◦ the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

◦ to care for the employee’s spouse, child, or parent who has a serious health condition;

◦ a serious health condition that makes the employee unable to perform the essential functions of his or her job;

◦ any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty” or

  • Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Intermittent Leave

FMLA leave may be taken as a single block of time or "intermittently" in certain situations, if medically necessary. This means that the employee can take the 12 weeks of unpaid, job protected leave in increments and does not have to take all of the leave at one time.

Protection

Health insurance must be continued for an employee on FMLA leave. The employee does have to make any required contributions for the coverage during the actual leave period. So long as the individual returns to work before the FMLA leave is exhausted, he or she must be returned to the same job (or a nearly identical job) as the job the person held when FMLA leave commenced. Time off for FMLA leave may not be held against the employee in employment actions such as hiring, promotions or discipline.

Notice Requirements

The FMLA imposes notification requirements on both employers and employees.

Employees must give their employers as much notice of the need to take FMLA leave as possible. Employees must follow the employer's absence procedures in reporting FMLA leave.

If an employee knows in advance that he or she will need FMLA leave, the employee must give at least 30 days advance notice. If the employee learns of the need for leave less than 30 days in advance, notice must be given as soon as possible.

An employee does not have to specifically ask for FMLA leave with the first leave request, and the words "FMLA Leave" do not have to be used. However, an employee should provide enough information so the employer is aware the leave might be covered by the FMLA. Otherwise, the leave does not have to be protected.

An employer must provide notice of eligibility for FMLA leave within 5 business days of a leave request. If the employer determines the employee is not eligible for FMLA leave, the employer has to provide at least one reason for ineligibility (such as the employee did not work for the employer for a total of 12 months).

When the employer gives notice of eligibility, the employer also must give notice of rights and responsibilities under the FMLA. This notice includes

  • A definition of the 12-month period the employer uses to keep track of FMLA usage (i.e., calendar year, 12 months from first leave, fixed year, or rolling period);
  • Whether the employee is required to provide medical certification from a health care provider (if certification is required, an employer can generally require the certification to be returned within 15 days);
  • The right to use paid leave and whether paid leave must be taken;
  • The right to maintain health benefits and whether premium payments for such benefits are required;
  • The right to return to the job at the end of FMLA leave; and
  • How much leave will be counted against the FMLA entitlement.

Medical Certification

If the employer requires medical certification for the FMLA leave, the employer can require the certification to be returned within 15 calendar days. The employee is responsible for the cost of getting the certification completed. Failure to return an FMLA certification request is a valid reason for denying FMLA leave. The certification must report specific information, including

  • Contact information for the health care provider;
  • When the serious health condition began;
  • How long the condition is expected to last;
  • Appropriate medical facts about the condition;
  • Whether the employee is unable to work or a family member is in need of care; and
  • Whether the leave is required continuously or intermittently. If intermittent leave is required, the certification should include an estimate of the time required for each absence, how often the absences will occur, and the medical justification for the intermittent leave.

An employer must identify missing information from the certification and give the employee 7 days to provide the information to complete the certification. If the validity of the certification is questionable, an employer may make an employee provide certification from a physician of the employer's choosing. However, the employer will have to pay for the cost of the second opinion. Updated certifications may be requested if the need for leave extends for a period of time or if it changes significantly.

Return to Work

When an employee on FMLA leave returns to work, the employer must return the employee to the same job or a nearly identical job. If the same job is not restored, the new position must

  • Involve the same or substantially similar duties, responsibilities and status;
  • Include the same general level of skill, effort, responsibility and authority;
  • Offer identical pay, including equivalent premium pay, overtime and bonus opportunities;
  • Offer identical benefits;
  • Offer the same general work schedule; and
  • Be at the same or nearby location.

Certain key employees do not have to be guaranteed reinstatement following FMLA leave. A key employee is a salaried, FMLA-eligible employee who is among the highest paid 10% of all employees working for the employer within 75 miles of the employee's worksite. Moreover, special rules apply to teachers who need intermittent leave or who request leave near the end of a school term.

FMLA issues create many compliance issues for employers. Therefore, FMLA policies should be reviewed in light of current requirements to make sure FMLA requests are being addressed appropriately.

Topics: HR & Benefits Compliance


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