4 th Annual Section of Labor and Employment Law Conference Chicago, IL November 3-6, 2010

Transcription

1 4 th Annual Section of Labor and Employment Law Conference Chicago, IL November 3-6, 2010 FMLA Substantive Rights: Entitlements and Limitations Catherine J. Trafton Associate General Counsel International Union, UAW 8000 E. Jefferson Ave. Detroit, MI (313)

2 Introduction The Family and Medical Leave Act of 1993 ( FMLA ), 29 U.S.C. 2601, et seq., provides covered employees with twelve (or in some cases twenty-six) weeks per year of unpaid leave in specified circumstances related to the birth or adoption of a child, the employee s own health condition, a family member s health condition, or for reasons related to a family member s participation in the National Guard or Reserves. The military leave provisions were added to the FMLA in 2008 by the National Defense Authorization Act, Public Law The Department of Labor revised the regulations governing the FMLA in January of 2009 to address the new category of military leave, as well as to make other changes. 29 CFR 825 et seq. 1 The stated purpose of the FMLA is to allow employees to balance their work and family life, by providing access to employment leave. 29 CFR (a). As stated in the governing regulations, [t]he FMLA was predicated on two fundamental concerns the needs of the American workforce, and the development of high-performance organizations. 29 CFR (b). As such, [t]he FMLA is both intended and expected to benefit employers as well as their employees because [a] direct correlation exists between stability in the family and productivity in the workplace. 29 CFR (c). This paper will discuss the coverage of the FMLA, the entitlements to leave that the Act creates, and the limitations placed on the use of that leave. 1 Many states have passed their own family and medical leave legislation to supplement rights provided under the FMLA. Three states (California, New Jersey and Washington) have enacted legislation providing for paid family leave.

3 Coverage Employers The FMLA covers any employer who employs fifty (50) or more employees during twenty (20) or more calendar work weeks in either the current or preceding calendar year. 29 CFR All public agencies are covered (federal, state and local), regardless of size. 29 CFR When determining whether a private employer meets the fifty (50) employee threshold, part-time employees, employees on leave with a reasonable expectation of returning to work, and leased and contingent employees are counted. 29 CFR Employees In order to be covered by the FMLA, an employee must be employed for at least twelve months, must have worked 1250 hours during the twelve-month period preceding the start of the leave, and must work at a location where the employer employs fifty (50) or more employees within a seventy-five (75) mile radius. 29 CFR In determining whether an employee has met the twelve-month service requirement, the twelve months of service need not be consecutive, as long as the service has accrued within seven years of the request for leave. 29 CFR (b). Whether an employee has met the minimum 1250 hours of service requirement is determined by principles established under the Fair Labor Standards Act. 29 CFR (4)(c)(1). The regulations require that time spent on military leave be counted toward both the twelve-month and the 1250 hour requirement. 2 There are special rules that govern the application of the FMLA to public school employees. See 29 CFR

4 Types and Amounts of Available Leave The FMLA provides four categories of leave: new child leave; medical leave; family care leave and military family leave. The rules governing the different leave categories vary and will be discussed in turn. With the exception of leave to care for a covered servicemember (allowing twenty-six weeks of leave), the leave entitlement under the FMLA is twelve weeks in a 12-month period. An employer may choose one of four methods for calculating the 12-month period: the calendar year; any fixed 12- month leave year (e.g. the fiscal year); the 12-month period measured forward from the first day of leave; or, a rolling 12-month period measured backward from the first day of leave. 29 CFR (b). 3 1) New Child Leave Covered employees are entitled to twelve weeks of leave for the birth (or adoption) of the employee s child and to care for a newborn child. 29 CFR The leave must be used within twelve months of the child s birth or adoption. Id. Both mothers and fathers are entitled to new child leave, but where a husband and wife are employed by the same employer, the employer may limit them to a total of twelve weeks combined. 29 CFR (a)(3). (Note: This limitation does not apply to the care of a spouse or a child with a serious health condition or to the employee s own serious health conditions, but does apply to leaves to care for the employee s parent with a serious health condition, as well as new child leaves. 29 CFR (b).) 3 It is important to note that family and medical leave issues are largely a mandatory subject of bargaining under the National Labor Relations Act. As a result, issues such as the method for calculating the leave year must be negotiated with the collective bargaining representative where there is a unionized workforce.

5 2) Medical Leave Covered employees are entitled to twelve weeks of leave due to a serious health condition that makes the employee unable to perform the functions of his or her job. 29 CFR (a)(4). The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves either: inpatient care at a hospital (29 CFR ), or continuing treatment by a health care provider (29 CFR ). Under the governing regulations, the continuing treatment requirement can be met in one of five ways: 1) by a period of incapacity of more than three consecutive calendar days, plus continuing medical treatment (29 CFR (a)(1)-(5)); 2) by incapacity due to pregnancy or prenatal care (29 CFR (b)); 3) by incapacity due to a chronic condition (29 CFR (c)); 4) by long-term or permanent incapacity (29 CFR (d)); or, 5) by any period of absence due to multiple treatments for a condition. 29 CFR (e). Under the regulations, incapacity means the inability to work or attend school or perform other regular daily activities. 29 CFR Continuing treatment means treatment two or more times within thirty days of the first day of incapacity (the first visit to the health care provider must occur within seven days of first day of incapacity). A chronic condition meets the FMLA s definition if it continues over an extended period(s), requires periodic visits for treatment by a health care provider, and causes or may cause episodic periods of incapacity. 29 CFR (c)(1)-(3). Some

6 examples of chronic conditions are diabetes, asthma, heart disease, arthritis, cancer, clinical depression and severe migraine headaches. A qualifying medical leave may be taken on a continuous, intermittent or reduced schedule basis. An intermittent leave is a medically necessary leave taken in separate blocks of time due to a single qualifying reason. 29 CFR Intermittent leaves typically involve chronic ailments (e.g. diabetes, asthma) and might include leave for chemotherapy treatments on alternate weeks, not working overtime because of a neck problem or leaving work early due to migraine headaches. An employee s entitlement to intermittent leave is determined by multiplying the number of days in a regular workweek by twelve. A reduced schedule leave is a leave schedule that reduces an employee s usual number of working hours per work week, or hours per workday. 29 CFR An example of a reduced schedule leave would be a pregnant employee who is limited to working four hours of an eight hour workday. A reduced schedule leave cannot be denied because an employer has a policy against part-time work or because a governing collective bargaining agreement forbids less than full-time work. An employee s entitlement to reduced schedule leave is calculated by dividing twelve by the proportion of the normal week not worked (e.g., a half-time schedule for twenty four weeks). When an employee takes FMLA leave on a intermittent or reduced schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, but not greater than one hour. 29 CFR

7 One final note with respect to medical leaves is that an employer can temporarily alter the employee s job or transfer the worker to a position that better accommodates recurring time off, but the new position must have equivalent pay and benefits and must not pose a hardship for the employee. When the need for time off is over, the employee should be returned to his or her regular position. 29 CFR ) Family Care Leave Covered employees are entitled to twelve weeks of leave to care for family members who are incapable of self-care due to a serious health condition. Under the FMLA, covered family members include the employee s spouse, parent, minor son or daughter, or adult son or daughter with a disability. 29 CFR In addition to biological and adopted children, covered employees are also entitled to take leave to care for children for whom they stand in loco parentis. Employees who stand in loco parentis include those with day-to-day responsibilities to care for and financially support a child... A biological or legal relationship is not necessary. 29 CFR (c)(3). In a recently issued administrative interpretation, the Wage and Hour Division of the Department of Labor clarified that an employee may be considered to stand in loco parentis where the employee will share equally in the raising of a child with the child s biological parent or where the employee will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child. See Administrator s Interpretation No (Issued June 22, 2010). Employees seeking leave to care for a family member with a serious health condition must show that the covered family member is incapable of self-care. 29

8 CFR (a)(1). Incapable of self-care is defined as requir[ing] active assistance or supervision to provide daily self-care in three or more of the activities of daily living. Activities of daily living include adaptive activities such as caring appropriately for one s grooming and hygiene, bathing, dressing and eating. Id. A family care leave under the FMLA can be taken on a continuous, intermittent or reduced schedule basis. The same rules that apply to intermittent and reduced schedule leaves taken for an individual employee s medical leave also apply for a family care leave. 4) Military Family Leave In January of 2008, the FMLA was amended by the National Defense Authorization Act for FY 2008, Public Law , to add provisions governing military family leave. Consistent with the amendments to the Act, the Department of Labor issued revised FMLA regulations in January of 2009 that address the military leave provisions as well as other sections of the regulations. The military family leave provisions were further expanded by the National Defense Authorization Act for FY 2010, Public Law Information regarding these most recent changes is available on the DOL website at The military leave provisions create two new categories of FMLA leave. First, covered employees are entitled to twenty-six weeks of leave per year to care for a covered servicemember with a serious illness or injury incurred in the line of duty CFR Second, eligible employees who are the spouse, son, daughter or 4 The twenty-six week leave-entitlement covers a single 12-month period beginning on the first day the employee takes leave and ends 12 months later, regardless of the 12-month period established by the employer for other types of FMLA leave. 29 CFR (c)(1).

9 parent of a member of the military may use their normal twelve-week entitlement for any qualifying exigency arising out of the fact that a covered military member is on active duty. 29 CFR Examples of qualifying exigencies include the following: 29 CFR (1) short notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) postdeployment activities; and (8) additional activities agreed to by employer and employee. Under the revised regulations, a covered servicemember includes: a current member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard or the Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list. 29 CFR (a). However, the regulations make clear that the term covered servicemembers does not include former members of the Armed Forces, former members of the National Guard and Reserves, and members on the permanent disability retired list. Id. Pay-Related Issues The leave entitlement granted by the FMLA is an entitlement to unpaid leave. In other words, the primary substantive right created by the FMLA is the right to return to the same or equivalent employment position after a covered leave. 5 However, in many cases, employees have access to other forms of paid leave in addition to their unpaid 5 Under the governing regulations, 29 CFR , an employee must be returned to his or her original job or its equivalent, which means the same pay benefits working conditions, schedule, shift, privileges, authority and status.

10 FMLA leave. Under the governing regulations, an employee may elect to substitute accrued paid leave for unpaid FMLA leave, or an employer may require them to do so. 29 CFR Unless another agreement is collectively bargained or created by an employer policy, an employer is permitted to run paid leaves concurrently with unpaid FMLA leave. In other words, an employee on paid sick leave may also be charged with time against their FMLA entitlement. Similarly, an employee on workers compensation leave may also be charged with FMLA leave time. Under the original FMLA regulations, there was some disagreement about the eligibility of an employee on FMLA leave to employer-provided bonuses, such as attendance bonuses. The new regulations make clear that an employer may deny a perfect attendance bonus to an employee who does not have perfect attendance because of an FMLA leave, as long as it treats persons taking non-fmla leave the same way. 29 CFR (c)(2). Benefits-Related Issues Although the FMLA does not create an entitlement to paid leave, the law does require that an employer maintain group health plan benefits for employees on FMLA leave. To the extent that cost-sharing is in place, the employee s obligations remain the same while on leave. 29 CFR If an employee fails to return from an unpaid FMLA leave, or returns to work and resigns within thirty days, the employer can charge the employee for health insurance premiums paid during the leave. 29 CFR However, an employer may not recover premium costs if the employee does not return to work because of a serious

11 health condition, because he or she is needed to care for a spouse, child or parent with a serious health condition, because of circumstances beyond the employee s control or because the employee retires. Id. CT:fmk opeiu494