The Nuts and Bolts of the Family Medical Leave Act

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The Nuts and Bolts of the Family Medical Leave Act

• Presented To
• Audubon Area
• Community Services
• Presented By
• Susan Sears, Esq.
• Dinsmore and Shohl, LLP

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Overview of the FMLA

• The Act protects employees by requiring employers
  to provide unpaid leaves of absence to employees
  when the leave is associated with
• the birth of a child,
• the placement of a child for adoption or in
  foster care,
• the employees serious illness,
• or the serious illness of the employees
  immediate family member.

• The FMLA establishes a minimum that must be
  provided. Employers are free to enact more
  generous policies.

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To Whom Does the Act Apply?

• Under the FMLA, employers are required to
  provide certain benefits to eligible employees.

• The next inquiry should be, exactly who meets the
  definitions of employer and eligible
  employees?

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Employer and Eligible Employee Defined

• Employer includes public employers and
  private employers with 50 or more employees for
  each working day during each of the 20 or more
  workweeks in either the current or preceding
  year.

• An Eligible Employee is a person who has been
  employed for at least 12 months AND has worked at
  least 1,250 hours for the employer during the 12
  month period before the leave is to begin.
• -FLSA principles in calculating time worked
• The school teacher presumption

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Who is NOT an Eligible Employee?

• An employee whose worksite has less than 50
  employees and whose employer has less than 50
  employees within 75 miles of that worksite.

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Key Employees

• Key Employees are eligible employees but have
  limited benefits.
• Employer may refuse to reinstate to former
  position if they are salaried and within among
  the highest paid 10 percent within 75 miles AND
• Necessary to prevent substantial economic injury
  to employer
• Notice

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To what protections are eligible employees
entitled?

• Essence of FMLA is job security
• Leave Entitlement
• 12 weeks unpaid leave
• Birth of child, to care for child, child placed
  for foster care or adoption, to care for yourself
  or a family members serious illness

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The Rolling Method of Calculating Leave
Entitlement

• Each time an employee takes FMLA leave,
  entitlement is calculated by counting the balance
  of the 12 weeks which has not been used during
  the immediately preceding 12 months.
• The Calendar year (12 weeks of leave a year) is
  also popular.
• Must chose a method and put in manual or court
  will use whatever method is most beneficial to
  employee.

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Serious Health Condition

• FMLA allows for leave when employee or employees
  family member has a serious health condition.
• Includes an illness, injury, impairment, or
  physical or mental condition that involves
• Inpatient care in a hospital, hospice or
  residential care facility, OR
• Continuing treatment by a health care provider
  and incapacitation for more than 3 days

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Examples of Serious Health Conditions

• Overnight stay in hospital, plus any period of
  incapacity and any subsequent treatment related
  to the condition that caused the hospital stay.
• Period of incapacity due to condition that lasts
  more than 3 days and requires treatment 2 or more
  times by a health care provider.
• Period of incapacity due to pregnancy and for
  prenatal care.

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Usually Minor Conditions

• Unless there are complications, a common cold,
  the flu, earaches, an upset stomach, minor
  ulcers, and headaches are minor conditions.
• Never assume that the above are not serious
  health conditions but rather determine if the
  condition meets the regulatory definition of a
  serious health condition.

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Defining the Term Incapacity

• A period of incapacity is required for a
  condition to be a serious health condition.
• Inability to work
• Not able to perform the functions of the
  employees specific job, attend school or perform
  other regular daily activities due to the
  condition or treatment and recovery.

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Husband/Wife Limitation

• Husband and wife employed by same employer. If
  leave is taken because of the birth of a child or
  to care for a sick parent, the couple is entitled
  to no more than 12 weeks FMLA leave.
• No limitation to care for a non-newborn child or
  to care for each other.

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Scenarios
Answer 1- The husband/wife limitation does not
extend to cover sick child FMLA leave. Thus, a
couple with an ill child would each be entitled
to 12 weeks of leave. Such leave could be taken
simultaneously or separately, at different times
of the year.

• Scenario 1- A married couple working for the
  same employer has an eight year old child who is
  diagnosed with Leukemia. How much collective FMLA
  leave may the couple take?

• Scenario 2- Imagine a married couple, both
  working for the same employer. The wife undergoes
  a Cesarean Delivery. If the Cesarean delivery was
  medically necessary, how much collective FMLA
  leave could the couple take?

Answer 2- The wife would be entitled to 12 weeks
leave associated with her serious health
condition. Simultaneously, the husband could
take up to 12 weeks of FMLA leave because of the
childbirth or the need to care for his spouse.
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Scenarios ctd.

• Scenario 3- If a man and woman, unmarried but
  employed by the same employer, have a child
  together, how much collective FMLA time would the
  couple be entitled to?

Answer 3- Each person would be entitled to 12
weeks of leave since the statute only imposes a
limitation on a husband and wife.
Leave because of placement for adoption or foster
care does not have the married couple
restriction. However, it is doubtful that such a
disparity between adoptive and natural parents
will result.
Scenario 4- A married couple employed by the
same employer has adopted a child and would like
to take FMLA leave to spend time with their new
baby. How much collective FMLA leave may the
couple take?
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Employer Notice

• An employer must notify an employee within 2
  business days that it is designating leave as
  FMLA leave. An employer may not designate leave
  as FMLA leave after the leave has ended.
• Two exceptions to this rule
• When an employer does not find out the reason for
  the leave until after the employee returns to
  work
• Where an employer has been unable to confirm that
  the leave qualifies for FMLA leave.

This is FMLA leave!
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Employee Notice

• When leave is not foreseeable
• Must provide as much notice as is practicable
• Ex.- sudden illness, injury on the job
• When Leave is foreseeable
• At least 30 days notice
• Ex.- birth, adoption, planned medical treatments
• Reasonable effort to plan to keep disruption to
  employer to minimum

I am taking FMLA leave!
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FMLA and Medical Records

• Certification
• Employees name
• Name of HP and practice
• Type of serious health condition and medical
  facts
• Date of commencement of condition
• Probable duration of condition
• Additional treatments required
• Treatment regimen
• Whether employee can work
• Additional provider required for treatment.

• Employees who request leave for their own serious
  health condition can be required to provide a
  medical certification from a health care
  practitioner (HP).
• Employee has 15 days to provide the
  certification.

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Intermittent Leave

• Situations can arise where an employee has a
  serious health condition, such as kidney
  disease or migraine headaches, that require
  intermittent leave from work.
• The time off from work that the employee requires
  to treat her condition might only be a few hours
  per week or some unpredictable amount of time off
  throughout the year.

Come back to see me on Mon. and Friday
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Intermittent Leave ctd.

• Intermittent leave is protected under the FLSA.
• Employees must try to schedule this leave so as
  not to disrupt the employers operations.
• Assign employee to alternative position with
  equivalent pay and benefits that better
  accommodates the employee.
• There may be a hardship defense with teachers and
  highly compensated employees, but very hard to
  get.

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Scenarios
Answer 5- The act does not specifically address
whether an employer may insist on reduced or
intermittent leave when the employee would prefer
continuous leave. However, under the Act an
employee shall make a reasonable effort to
schedule treatment so as not to disrupt
operations of employer. This language suggests
that an employee may be required to adjust
personal preferences regarding continuous or
intermittent leave to an employers legitimate
interests.

• Scenario 5- It is February and a Head Start
  teacher gets a call from her mother, who has been
  diagnosed with terminal cancer. Her mother lives
  in California and needs someone to take care of
  her in between chemotherapy treatments. The Head
  Start teacher asks her employer for 12 weeks of
  unpaid continuous leave to take care of her
  mother in California. Must the employer grant
  this continuous leave in the middle of the school
  year?

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Scenarios ctd.

• Scenario 6- Imagine an employee, hourly or
  salaried, who regularly works 50 hours a week.
  Her spouse has been seriously ill and requires
  her assistance with three weekly therapy visits,
  with each visit requiring a total of four hours
  absence from work (a weekly absence of 12 hours).
  For what period must the employer permit such
  FMLA entitled absence from work?

Answer 6- If an employee takes leave on an
intermittent or reduced leave schedule, only the
amount of leave actually taken may be counted
toward the 12 weeks of leave to which an employee
is entitled. A workweek of 40 hours translates
to 480 hours of leave. This employee, who works
50 hours per week accumulates 600 hours of FMLA
leave.
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Compensability of Leave

• The employer need not pay the employee who is on
  FMLA leave.
• The employer may require the employee to
  substitute accrued vacation or personal leave for
  any FMLA purpose.

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Scenario

• Scenario 7- An employee has a sick child. Her
  employers paid sick leave plan does not provide
  paid sick leave to take care of family members,
  but limits its use to the employees own ill
  health. Must the plan provide for paid leave in
  this situation?

Answer 7- If an employers paid sick leave plan
does not permit use of that leave to care for an
ill family member, but limits its use to the
employees own ill health, the FMLA will not
require that leave associated with the family
members care to be paid.
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Insurance

• The on-leave employee is entitled to continued
  coverage , at the same level, under the
  employers health insurance plan.
• To the extent that the employee is normally
  required to pay all or a portion of the health
  care premiums, the requirement continues during
  the leave.

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Reinstatement

• When the employee has exhausted the 12 weeks of
  leave, the employee must be reinstated to his or
  her prior position or an equivalent position.
• Equivalent position means equivalent
  compensation, benefits, working shifts, hours of
  employment, authority and responsibility, and
  other terms and conditions of employment.

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How the FMLA is Enforced

• Employers are forbidden from interfering with,
  restraining, or denying the exercise or attempt
  to exercise any right provided by the Act.
• Employee may bring an action in state or federal
  court seeking lost compensation and interest as
  well as liquidated damages in an equal amount.
• Employee may obtain reinstatement, employment, or
  promotion.

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FMLA Interaction With Other Federal Legislation

• FMLA conflict with the Americans with
  Disabilities Act (ADA)
• Obtaining information for employee notice versus
  making a medical inquiry
• The employer should gain enough information to
  determine if FMLA leave time will apply, but at
  the same time the employer must ensure they are
  not making a medical inquiry prohibited by the
  ADA.

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FMLA and Workers Compensation

• Many employers do not count as FMLA leave the
  period of time when the injured worker is out of
  work and receiving temporary disability benefits
  in workers compensation.
• This may result in the injured worker taking an
  additional 12 weeks after workers compensation
  benefits are terminated.

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FMLA and Workers Compensation ctd.

• When a workers compensation claimant is gone for
  several days or weeks and is receiving medical
  treatment the employee may assume that the worker
  qualifies for FMLA leave.
• It is discretionary for employers to count the
  absence for workers comp. Toward FMLA leave,
  which means that workers compensation and FMLA
  leave can run concurrently.
• Must give notice that this is the policy

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Light Duty- FMLA and Workers Compensation Issues

• Employee who cant perform essential function of
  her job during the original 12 week FMLA leave
  may reject a light duty assignment.
• When a worker rejects a light duty assignment
  they may lose their workers compensation
  benefits but still retain full rights to job
  protection under the FMLA during the 12 week FMLA
  coverage.

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Questions?