The Family and Medical Leave Act (FMLA), which became law in 1993, provides qualified employees with up to 12 weeks of unpaid leave per year for the birth or adoption of a child, for caring for a spouse or an immediate family member with a serious health condition or for convalescence after an employee’s own serious health condition.
Some states have their own family leave laws. In such cases, you must abide by the regulation that provides the most generous benefit to the employee.
Which companies must comply?
Any company with 50 or more employees working within a 75-mile radius of the “work site” must comply. The 75-mile radius provision could exempt some larger companies that operate from a small headquarters but do business in many other locations outside the 75-mile limit.
Employee eligibility for FMLA
To be eligible for leave under the FMLA, an employee must have worked for the same employer for a 12-month period. The worker also must have logged at least 1,250 hours of service (slightly more than 24 hours per week) with that employer. On-call time counts toward the 1,250 hours. Employees exempt from the Fair Labor Standards Act are assumed to have met the 1,250-hour test.
How much leave time?
Eligible employees can take up to 12 weeks of unpaid, job-protected leave during a 12-month period. You must set a 12-month period for all employees based on one of the following:
The last scenario prevents an employee from taking 24 weeks of leave at once-that is, 12 weeks at the end of one year followed by 12 weeks at the beginning of the next year.
Who is considered ‘family’?
Employees, both men and women, may take leave for the birth or adoption of a child or to provide foster care. Foster care is a state-sanctioned arrangement; taking care of someone else’s child does not normally qualify. Employees also can request FMLA leave to provide needed care to a sick child, spouse or parent.
Care provided to siblings, aunts, uncles, cousins, grandparents, in-laws or domestic partners is not covered by the FMLA. Once children become 18, they don’t qualify unless a mental or physical disability makes them incapable of self-care.
What is a ‘serious’ health condition?
Eligible employees are entitled to FMLA leave to care for their own “serious condition” or the serious condition of a child, spouse or parent. Under the new regulations that took effect in January 2009, a “serious health condition” that qualifies for FMLA leave means an illness, injury impairment or physical or mental condition that involves at least one of the following:
Hospital care: Inpatient (overnight) care in a hospital, hospice or residential care facility, including any period of incapacity or treatment connected to inpatient care.
Absence plus treatment: A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves one of the following:
Pregnancy: Any period of incapacity due to pregnancy, or for prenatal care.
Chronic conditions requiring treatments: A chronic condition that extends over a period of time and requires periodic treatments. “Periodic visits” are defined as at least two visits to a health care provider per year. During that period, the incapacity may be episodic rather than continuous. Examples include asthma, epilepsy or diabetes.
Permanent/long-term conditions requiring supervision: A permanent or long-term incapacity due to a condition that may not respond to treatment. The employee or family member must be under the continuing supervision of (but need not be receiving active treatment by) a health care provider. Examples: Alzheimer’s or the terminal stages of a disease.
Multiple treatments (nonchronic conditions): Any period of absence to recover from or receive multiple treatments for restorative surgery after an accident or injury, or for a condition that would probably result in a period of incapacity of more than three consecutive calendar days in the absence of medical treatment, such as cancer (chemotherapy, etc.), severe arthritis (physical therapy) and kidney disease (dialysis).
Note: You do have the right to demand medical certification from a health care provider before acting on an employee’s FMLA leave request. The law entitles you to ask for a second or third opinion, if necessary, before granting FMLA leave.
The FMLA establishes a class of workers known as “key” employees to whom you can deny reinstatement from FMLA leave if doing so would cause your business “substantial and grievous economic injury.” You cannot deny FMLA leave to a key employee, only reinstatement. Key employees are salaried workers whose earnings are in the firm’s top 10 percent.
The law says employees should schedule their leave “so as not to unduly disrupt the employer’s operations.” Be sure, however, that any postponement does not endanger the health of the employee or the family member. A parent can take leave to care for a newborn or newly adopted child any time in the first 12 months after the birth or adoption. The leave must be concluded before the 12-month period is up.
Taking intermittent FMLA leave
Employees can take intermittent FMLA leave for medical treatment or for other medical reasons. Employees can, for example, take two hours of leave twice a week for doctor appointments or several days at a time spread over six months for chemotherapy. The law says you must track intermittent leave in the lowest normal measure of time that you already have for pay purposes.
Paid vs. unpaid leave
FMLA leave is unpaid unless you voluntarily decide to continue paying the worker. You may insist that the employee first use all her paid time (such as annual leave and sick leave) and count that toward her total FMLA time. If you do not insist that a worker first must use her paid leave as part of FMLA, she is entitled to such leave on top of the 12 weeks of unpaid leave.
You must continue to provide health benefits to an employee on FMLA leave. The same services your group plan provides on-the-job employees must be made available to those on FMLA leave. If you change coverage or adopt a new plan that offers new services while the employee is on leave, the new benefits must be made available to that worker.
Eligible employees who want to take FMLA leave must give you 30-days advance notice when the need is foreseeable, such as when a pregnant worker anticipates time off for childbirth. When it’s not foreseeable, they need to inform you “as soon as practicable” under the circumstances.
To give proper notice, employees must explain that family and medical leave is needed. They don’t need to mention the the term “FMLA” as long as they provide enough information for you to decide that the leave qualifies under the FMLA. In short, the burden is on you to notice that leave may qualify.
When a worker returns
An eligible employee who takes FMLA leave is entitled to be restored to the same position he held when the leave started or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. The new position must involve the same or substantially similar duties and responsibilities and must entail equivalent skill, effort, responsibility and authority. Your best bet is to hold the worker’s job during FMLA leave.
You must count leave time as work time for pensions and your other retirement programs. You can refuse to reinstate a returning employee under only a few rigidly circumscribed conditions. If you can show, for example, that the employee would have been laid off during the time he was on leave had he been working, he need not be reinstated. This could occur if you closed a department where the employee worked.
Record keeping at a minimum
You don’t need to complete any special forms or revise your computerized payroll or personnel records to comply. But your FMLA records must show basic payroll and identification data. Also, note the hours an employee takes when going on intermittent leave. Make sure you have this information in writing. Keep copies of the FMLA notices you provided to an employee in his personnel file. If the Labor Department has “reasonable cause” to suspect an FMLA violation or is investigating a complaint, it can demand to see records any time it chooses.
“FMLA-eligible employees may take unpaid leaves of absence for the following reasons:
“Family leave: The birth of your child or the placement of a child in your home for adoption or foster care. FMLA family leave must conclude within 12 months after the birth or placement of your child.
“Medical leave for yourself or family care: A serious medical condition of yourself or a family member (child, spouse, parent or one who stood in place of a parent).
A serious health condition is an illness, injury, impairment or physical or mental condition that involves inpatient care, treatment or supervision by a health care provider. A serious health condition includes any period of incapacity due to pregnancy or for prenatal care.
“Any paid leave to which the employee is entitled at the time of the leave must be taken as part of the 12-week leave, with the remainder of the leave unpaid. In other words, if the employee is entitled to two paid weeks of vacation plus five sick days when he or she goes on leave and takes the full 12 weeks off, the employee will be paid for the first three weeks of leave and take the remaining nine weeks without pay.
“You may take up to a total of 12 workweeks for family or medical leave in any 12-month period. A 12-month period is determined by reviewing the 12 months prior to the date the requested leave is to begin.
“Eligibility: If you are an active employee, you are eligible for family and medical leave unless you have worked less than 1,250 hours during the 12-month period before the leave is to commence.
“Procedures: After discussing your need for leave with your manager or supervisor, you should submit any request for an FMLA leave to the Human Resources Department at least 30 days prior to the date you wish to begin the leave if the need for leave is foreseeable. . . .
“Medical certification: Employees taking FMLA medical leave for self or family care must submit a medical certification to Human Resources. XYZ may request, at its own expense, a second medical opinion. Should the first and second opinions differ, XYZ may require, at its own expense, the opinion of a jointly approved health care provider, whose opinion shall be binding. In addition, XYZ may periodically require recertification of a medical condition.
“In most cases, upon returning from FMLA medical leave for self-care, you will be required to provide medical certification that you are able to return to work. Requests for such certification will be job-related and consistent with the business necessity of XYZ.
“Benefits and job continuation: All benefits, if you elect, will continue through the leave period. You must continue to contribute your share of any medical and insurance premiums. If you are using paid leave (i.e., vacation, sick leave, personal days) for your leave, you will continue to accrue vacation and sick leave, and you will be paid for holidays that occur during the paid portion of your leave. Vacation and sick leave will not accrue during any unpaid leave, and you will not be paid for holidays that occur during your leave. . . . When you return from FMLA leave, you will be restored to the same or an equivalent job position, unless your position has been affected by a reduction in force, reorganization or other change that would have occurred had you not been on leave.
“FMLA medical leave may be taken intermittently or on a reduced work schedule when medically necessary, subject to medical certification. In such circumstances, XYZ may temporarily transfer you to an alternative position for which you are qualified and that better accommodates the recurring periods of leave. If a transfer is made, your pay and benefits will not be reduced.”
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