FAMILY & MEDICAL LEAVE ACT (FMLA)

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1 FMLA was created to allow employees to take time off from work to take care of personal or family medical problems without the threat of punishment or retaliation from their employers. All public employers are subject to FMLA. All private employers who hire 50 or more people for at least 20 weeks in the current or previous calendar years are also subject to FMLA. Workers who are full time, part time, temporary, on layoff status who are subject to recall, and employees on leave who will later return to work are all counted when counting the 50 workers required to trigger FMLA.

2 Independent Contractors are not considered employees under FMLA. A temporary staffing agency and an employer are considered joint employers for purposes of determining employer coverage and employee eligibility under FMLA. Workers who are stationed outside the U.S., its territories, or possessions are not counted when counting the 50 workers required to trigger FMLA.

3 REQUIREMENTS FOR FMLA ELIGIBILITY: 1. The employee must be employed by a covered employer in the U.S. or one of its territories or possessions; 2. The employee must work at a jobsite where the employer employs 50 or more employees at or within 75 miles of the jobsite; 3. The employee must have worked for the employer for at least 1 year (does not have to be 1 consecutive year); and 4. The employee must have worked at least 1,250 hours for the employer during the 12 month period immediately preceding the date leave will begin.

4 An employee can take up to 12 workweeks of job protected leave in a 12 month period in the following instances: 1. The birth of a child (and to care for the newborn); 2. The placement of a child with the employee for adoption or foster care purposes; 3. To care for an immediate family member (spouse, parent, or child) who has a serious health condition; or 4. The employee has a serious health condition that prevents the employee from performing functions of his or her position.

5 Under FMLA the employee is entitled to 12 work weeks of job protected unpaid leave per year for a qualifying reason (see previous slide). An eligible employee may however choose to substitute available paid company leave for unpaid FMLA leave. (EX: The employee chooses to substitute paid sick leave, family or personal leave, or accrued vacation days). All leave taken for an FMLA qualifying reason, paid or unpaid, will count against the employee s allotted 12 weeks of FMLA leave. If a serious health condition results from an on the job injury (workers compensation injury), the employee or employer can choose whether the FMLA leave will run concurrently with the employee s absence due to the on the job injury.

6 If an employee chooses to substitute paid leave for unpaid leave, this must be done in writing! The employer should make a good faith effort to give a preliminary designation within 2 business days after the employer learns of the possible FMLA qualifying reason for the absence. An employer can retroactively designate an absence as FMLA if: 1. The employer does not know the reason for the absence at the time it occurs, and the employer makes the designation within 2 business days after the employee returns from the absence; or 2. The employer preliminarily designates the absence as FMLA leave and is awaiting a medical certification.

7 Intermittent FMLA Leave This leave is taken in blocks of time due to a single qualifying reason. Reduced Leave This leave reduces an employee s usual number of working hours per Workweek or per workday. Leave for the birth of a child or for the placement of a child for adoption or foster care purposes can only be taken intermittently or by reduced leave. Leave may also be taken intermittently or by reduced leave for planned or unanticipated medical treatment or for a serious health condition.

8 CASE DISCUSSION: Brown v. J.C. Penney Corp, 924 F. Supp (1996). An employee requested a twelve week leave to care for his terminally ill father. Seven weeks into the leave, the employer replaced the employee. One week later, the employee s father died but he did not tell his employer about his father s death, and he did not return to work until the expiration of the full twelve weeks. When he returned to work, he was told that he had been replaced as the customer service supervisor. He was told that there was a sales associate position for him at his former supervisory position's rate of pay. The plaintiff refused the alternate job and was terminated. RULE: Even if an employee was on FMLA leave to care for a family member s serious health condition when the family member dies, an absence from work to handle the funeral arrangements of that deceased family member does not qualify for FMLA leave.

9 A serious health condition means those conditions that require absences beyond those usually provided for by an employer s sick leave policy such as (this list is not all inclusive): heart attacks heart conditions requiring heart bypass or valve operations most types of cancer severe back conditions (extensive therapy/surgery needed) strokes spinal injuries appendicitis pneumonia emphysema severe arthritis severe nervous disorders pregnancy related conditions, including morning sickness & miscarriages

10 EMPLOYEE PROTECTIONS UNDER FMLA An employee returning from FMLA has the right to return to the same position, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. LIMITATIONS TO THE EMPLOYER S FMLA OBLIGATION If the employer would have terminated the employee even if the employee had not taken FMLA the employer can refuse to reinstate the employee to the same or equivalent position. Key employee a salaried FMLA eligible employee who is among the highest paid 10% of all the employees within 75 miles of the employee s work site at the time the employee gives notice of the need for leave. If reinstating a key employee would cause a substantial and grievous economic injury to the company, the employer does not have to reinstate a key employee upon his or her FMLA leave return.

11 After an employer makes a good faith determination that it will suffer a grievous and substantial economic injury if a key employee is reinstated, the employer must give written notice in person or by certified mail stating: 1. The employer cannot deny FMLA leave to the employee; 2. The employer intends to deny employment to the employee upon completion of the FMLA leave; and 3. An explanation of the employer s reasons for finding that substantial and grievous economic injury will result if the employee is restored.

12 If an employer is not able to immediately determine if it will suffer harm from the absence of a key employee, the employer must provide written notice to the employee when the employee notifies the employer of his or her intention to take FMLA leave. The notice must state: 1. that the employer believes it may be entitled to deny reinstatement to the employee; and 2. an explanation of the potential consequences with respect to reinstatement and the maintenance of health benefits if the employer determines that it will suffer substantial and grievous economic consequences.

13 Benefit Protection The FMLA requires that an employer maintain the employee s coverage under any group health plan as if the employee had been continuously employed during the entire leave period. FMLA leave must not be treated as a break in service for purposes of vesting and eligibility to participate. EMPLOYEE S OBLIGATIONS An employee must give 30 days notice of the desire to take FMLA leave. An employer can require that the employee bring a medical certification when FMLA leave is requested.

14 An employer can only request certification regarding: 1. The facts surrounding the serious medical condition. 2. The date the serious health condition began its probable duration, and whether it will be necessary for the employee to take an intermittent or reduced leave; 3. Additional treatments that may be required for the medical condition; 4. Employee s ability to work; and 5. Absence to care for family members

15 EMPLOYER S OBLIGATIONS The employer must notify the employees of their rights under FMLA by 1) posting approved FMLA notices; and 2) providing the FMLA policy in an employee handbook; or provide other written guidance outlining FMLA rights and employee obligations. The employer must provide the employee with written notice that includes details of the specific obligations of the employee when requesting FMLA leave, and the consequences for failing to meet the obligations. An employer shall not interfere with an employee s rights under FMLA.

16 CASE DISCUSSION: Beno v. United Tele Co. of Florida, 969 F. Supp. 723 (1997) The employer discharged the former employee for seeking reimbursement for expenses of another person's meals while on a business trip. The court noted that before the former employee requested medical leave, her supervisors had already discovered and reported the expense irregularity, conducted an investigation, and recommended her termination. Steps toward the employee s termination were already underway before she requested medical leave. RULE: To maintain a prima facie case for a FMLA violation, a plaintiff must demonstrate that: (1) she is protected under the FMLA (2) she suffered an adverse employment decision, and (3) either she was treated less favorably than an employee who had not requested FMLA leave or the adverse decision was made because of the plaintiff's request to leave.