AMERICAN BAR ASSOCIATION 2000 ANNUAL MEETING LABOR AND EMPLOYMENT LAW SECTION JULY 10, 2000

Transcription

1 AMERICAN BAR ASSOCIATION 2000 ANNUAL MEETING LABOR AND EMPLOYMENT LAW SECTION JULY 10, 2000 FAMILY AND MEDICAL LEAVE ACT: WAGE AND HOUR ADVISORY S Pamela L. Hemminger Gibson, Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA (213) phemminger@gdclaw.com i

2 FAMILY AND MEDICAL LEAVE ACT: WAGE AND HOUR ADVISORY S The following table summarizes the principal conclusions reached in the FMLA Advisory Opinions issued by the Wage and Hour Division of the Department of Labor since the enactment of the Family and Medical Leave Act. The "Topic" column provides a brief description of the matter covered by the Advisory Opinion. For Advisory Opinions that address more than one issue, each issue is separately discussed. The specific sections of the FMLA and of the enabling regulations which are explicitly referenced are also listed. The information is current as of April 30, No. 1 June 15, 1993 (BNA) 99:3001 Maintaining Health Benefits Group health coverage must be maintained during leave under the conditions coverage would have been provided if the employee had continued working continuously for the duration of the leave. "If the employer is providing health insurance to discharge the health and welfare benefits requirement of the wage determination, that benefit must continue through the entire period of the unpaid FMLA leave. An employer's obligation to continue medical insurance coverage during a period of FMLA leave would only cease when it becomes known that an employee is not returning to employment." If cash is paid in lieu of health and welfare benefits required by a wage determination concerning a government contract, the employer has no obligation to continue cash payments during FMLA leave. The contractor, however, may negotiate with the agency regarding the possibility of passing along increased costs resulting from FMLA compliance. 29 C.F.R No. 2 August 16, 1993 (BNA) 99:3001 No Fault Attendance Policies Leave taken for an FMLA reason may not be counted in any manner under "no fault" attendance policies. 29 C.F.R (c) Accrual of Benefits -- Vacation Pay The employee is not entitled to accrue benefits or seniority, including vacation pay, during periods of unpaid FMLA leave. 29 C.F.R (d)(2) 1

3 No. 2 (cont'd) Effect of FMLA on Other Laws -- Calculating Overtime Pay under the FLSA "The Fair Labor Standards Act requires an employer to include nondiscretionary bonuses in the calculation of an employee's regular rate before computing statutory overtime pay due. One method of calculating the overtime pay due as the result of paying a bonus, would be to express the bonus as a percentage of the total earnings of the employee(s) including regular and overtime earnings. Such a calculation would not be contrary to the provisions of the FMLA." Attendance Reward Programs "[A]n employee may not be disqualified from an attendance reward program nor may any reward be reduced for having taken unpaid FMLA leave." Accrual of Benefits -- Bonuses A bonus expressed as an amount per hour worked will yield a lesser bonus for an employee who was out on FMLA leave. This is consistent with the policy that an employee on FMLA leave is not entitled to accrue benefits during FMLA leave. 29 C.F.R (c) No. 3 September 9, 1993 (BNA) 99:3002 Return to Equivalent Position An employee returning from FMLA leave may request return to a different shift, schedule or position which better suits his or her personal needs. However, the employer cannot force an employee to accept such a position. No. 4 September 9, 1993 (BNA) 99:3002 Definition of Employer -- Condominium Associations in Hawaii A single managing agent with on-site supervisory authority which employs 50 or more employees at various condominium associations during 20 or more calendar weeks in the current or preceding calendar year would constitute a covered employer with responsibilities as a primary employer. 29 C.F.R C.F.R No. 5 September 27, 1993 (BNA) 99:3004 Amending Leave Policies Nothing in the FMLA prevents an employer from changing its policy prior to the effective date of the FMLA from one providing 12 weeks of paid disability leave to one providing 12 weeks of unpaid leave. 29 C.F.R C.F.R

4 No. 6 October 1, 1993 (BNA) 99:3005 Return to Equivalent Benefits -- Disability Insurance Disability insurance is not part of the health benefits that must be maintained for an employee on FMLA leave. However, an employer may pay premiums on such insurance to prevent a lapse in coverage and to ensure that the employer can meet its obligation of returning the employee to equivalent benefits upon return from FMLA leave. 29 C.F.R (f) No. 7 October 8, 1993 (BNA) 99:3005 Definition of Employer -- Volunteers Volunteers are not counted as employees for determining whether an employer is subject to the FMLA. No. 8 October 15, 1993 (BNA) 99:3005 Definition of Employer -- Joint Employment Relationships Section of the FMLA regulations describes factors to use to determine whether a joint employment relationship exists and how to distinguish a primary employer from a secondary employer. These factors were not discussed in the opinion, but it did explain that the "primary" employer in the joint employment relationship "is responsible to all its employees for giving the notices required by FMLA, providing FMLA leave, maintaining health benefits during FMLA leave, and restoring employees to their same or an equivalent position of employment upon the conclusion of FMLA leave." The opinion also explained that the "secondary" employer "must comply with the prohibited acts provisions of the statutes,... which include prohibitions against interfering with an employee's attempt to exercise rights under the Act... or discharging or discrimination against an employee for opposing a practice that is unlawful under the FMLA. The factors distinguishing a 'primary' employer from a 'secondary' employer in joint employment relationships include which one has the authority and responsibility to hire and fire employees, place them and assign their work, make the payroll, and provide employment benefits." 29 C.F.R No. 9 October 18, 1993 (BNA) 99:3007 Definition of Eligible Employee -- Employees in Foreign Countries The FMLA applies to employees in the United States and any territory or possession of the United States. Employees stationed full-time overseas in a foreign country on one and two-year employment contracts are not eligible for FMLA benefits. 3

5 No. 10 October 27, 1993 (BNA) 99:3007 Effect of FMLA on Other Laws -- New Jersey Family Leave Law "Whether an employer is a covered employer under State law is not relevant to any determination of coverage under the FMLA." With regard to intermittent leave, the New Jersey and Federal laws contain similar provisions. Definition of Eligible Employee -- Determination of Worksite Part of the definition of an eligible employee requires that the employee be "'employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.'... [F]or employees with no fixed worksite, the 'worksite' is the site to which they are assigned as their home base, from which their work is assigned, or to which they report." 29 C.F.R (a) 29 C.F.R (a)(2) No. 11 November 2, 1993 (BNA) 99:3008 Contact with Employee While on Leave The FMLA does not prohibit an employer from requesting that the employee contact the employer regarding work projects while the employee is on FMLA leave that began as emergency leave. Return to Equivalent Benefits -- Health Insurance While the employer is not required to pay an employee's co-payment while the employee is on FMLA leave, the employer may desire to do so to ensure that it is able to restore the employee to equivalent benefits upon the employee's return to work. The employer will be entitled to recover any payments made on the employee's behalf. No. 12 November 2, 1993 (BNA) 99:3009 Designation of Leave No retroactive designation of leave may be made if the employer did not comply with the requirement that the employee be notified whether leave is FMLA leave. 29 C.F.R C.F.R (c) 4

6 No. 13 November 2, 1993 (BNA) 99:3010 Maintaining Health Benefits An employer that offered its employees on leave the option of continuing medical coverage or accepting 50% of the cost of the coverage as deferred compensation inquired whether it must continue to offer the deferred compensation during periods of FMLA leave. Wage & Hour explained that the coverage must be maintained at the same level and in the same manner as it existed before the leave commenced. "Consequently, the employer may not offer the employee an option that does not provide for maintenance of coverage during any period of FMLA leave. Under these circumstances the decision to continue paying deferred compensation to an employee would be at the sole discretion of the employer assuming such payment is not the subject of a collective bargaining agreement." No. 14 November 3, 1993 (BNA) 99:3011 Maintaining Health Benefits -- Multiemployer Plan An employer whose employees are provided benefits through the operation of a multi-employer plan must continue to make contributions during FMLA leave unless the employer demonstrates that the employee would not otherwise have been employed. However, "if the plan expressly provides for some other method of maintaining coverage for a period of leave required by the FMLA," the employer is relieved of making contributions to the plan. Likewise, the employer may be relieved of its obligations "if the employer... ceases activity and all employees in that job are laid off," provided that "the employer can demonstrate the employee would not have continued to be employed by either the employer or another employer who is a member of the same plan." Furthermore, "if the employer closes one construction site, lays off all employees, but moves those employees to another site to continue employment, the employer must continue to make contributions on behalf of the employee taking FMLA leave as it is reasonable to assume the employee would have continued employment at the alternate site as well." No. 15 November 5, 1993 (BNA) 99:3011 Interference with FMLA Rights -- Furnishing Lodging According to Wage & Hour, an attempt to require an FMLA-eligible employee to vacate employer-provided lodging during the term of FMLA leave would be construed as an attempt to interfere with or restrain an employee's attempt to exercise rights under the FMLA. 5

7 No. 16 November 15, 1993 (BNA) 99:3012 Medical Certification -- Care for Family Member When providing certification that an employee is needed to care for a family member, the doctor does not need to certify that the employee is the only person that can provide the care. Rather, the doctor need only state that such care is required. Fraud "An employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA's job restoration or maintenance of health benefits provisions." 29 C.F.R (g) Work at Another Job While on FMLA Leave An employer should apply existing policies regarding outside or supplemental employment to an employee working at another job while on FMLA leave. 29 C.F.R (h) No. 17 November 15, 1993 (BNA) 99:3013 Modified or Light Duty Job Programs The FMLA does not prohibit an employer from accommodating an employee's request for light duty instead of taking leave, but the employer may not induce the employee to take such a position against his or her wishes. 29 C.F.R (d) 29 C.F.R (e)(4) 29 C.F.R No. 18 November 15, 1993 (BNA) 99:3014 Definition of Eligible Employee -- 1,250 Hour Requirement Time spent on paid or unpaid leave does not count in determining the 1,250 hour eligibility. 29 C.F.R. Part 785 No. 19 December 6, 1993 (BNA) 99:3014 Maintaining Health Benefits -- Cash Supplements An employer whose normal policy is to provide a weekly cash supplement in lieu of insurance to employees who receive medical insurance from another source is not required to continue that cash payment to employees on FMLA leave. 6

8 No. 20 December 7, 1993 (BNA) 99:3014 Accrual of Benefits -- Holiday Pay The eligibility of an employee on FMLA leave for holiday pay is determined by reference to the employer's policy with respect to equivalent leave. That is, if paid leave is being substituted and the employer's policy is that no holiday pay is paid to employees out on paid leave, then the employee on FMLA leave is not entitled to holiday pay. No. 21 December 7, 1993 (BNA) 99:3015 Care for People Other Than Parent, Children or Spouse "Congress did not provide FMLA coverage for employees caring for persons other than a biological parent of someone who is in loco parentis, in addition to a spouse or child." No. 22 December 9, 1993 (BNA) 99:3015 Definition of Employer -- Corporation with Multiple Divisions The legal entity which employs the employee is the employer under the FMLA. A corporation is a single employer rather than its separate establishments or divisions. An employee would be eligible for FMLA leave if the employee is employed at a worksite which has 50 or more employees at or within 75 miles of the worksite. 29 C.F.R (c) No. 23 December 28, 1993 (BNA) 99:3016 Maintaining Health Benefits -- Continuation of Health Care Premium Payment by Employers Employers must "maintain an 'eligible' employee's coverage under any group health plan during any period of FMLA leave on the same conditions as coverage would have been provided if the employee had worked continuously during the leave. This means that, if an employer normally pays a portion of an employee's group health plan premiums prior to the employee taking FMLA leave, the employer must continue to pay the employer share of the premiums during the FMLA leave at the same rate.... The employer cannot require an employee who takes FMLA leave to pay more for maintaining group health insurance during the FMLA leave than the employee normally pays when working." Thus, any policy adopted before the FMLA which required employees who go on unpaid leave to begin paying the entire health insurance premium must be revised. 29 C.F.R (c)(4) 7

9 No. 24 January 6, 1994 (BNA) 99:3016 Definition of Employer "Employers are covered under FMLA if they have employed at least 50 employees during 20 or more calendar workweeks in the current or preceding calendar year." Definition of Eligible Employee "Employees are eligible under FMLA if they have worked for a covered employer for at least 12 months, have worked at least 1,250 hours during the 12 months preceding the start of leave, and are employed at a worksite where the employer employs at least 50 employees within 75 miles." Qualifying Reasons for Unpaid FMLA Leave "Unpaid FMLA leave must be granted to an eligible employee for any of the following reasons: (1) for birth of a child, and to care for the newborn child; (2) for placement of a child with the employee of a child via adoption or foster care; (3) to care for the employee's spouse, child, or parent who has a serious health condition; and (4) for a serious health condition that makes the employee unable to perform his/her job." Waiving FMLA Rights An employer may not induce employees to waive rights under the FMLA. 29 C.F.R (d) Return to Equivalent Benefits "[T]aking FMLA leave will not result in the loss of any employment benefit accrued prior to the date on which the leave began." Benefits accrued at the time the leave began must be available to the employee upon return from leave. 29 U.S.C. 2614(a)(2) 29 U.S.C. 2614(a)(3) Accrual of Benefits Employees on FMLA leave are not entitled to accrue seniority or employment benefits during any period of FMLA leave. 29 C.F.R (d)(2) 8

10 No. 25 January 10, 1994 (BNA) 99:3017 Return to Equivalent Benefits -- Imposition of New Benefit Requirements After Return from FMLA Leave An eligible employee must be fully restored upon return from FMLA leave to the same benefits coverage and may not be required to meet any requirements imposed by the plan to requalify for any benefits the employee enjoyed before FMLA leave began. Plans may not impose new pre-existing conditions limitations periods or start the limitation period time period again after each FMLA leave. For example, "[a]n employee who has partially satisfied the pre-existing conditions limitation period prior to commencing FMLA leave need only satisfy the remainder upon return from leave." 29 C.F.R (d)(1) No. 26 January 14, 1994 (BNA) 99:3019 Implication of Collective Bargaining Agreement The FMLA does not take effect until a collective bargaining agreement expires or February 5, 1994, whichever is earlier. 29 C.F.R (c) 29 U.S.C (note) Definition of Employer -- City Governments Included City governments are public agencies and covered employers under the FMLA regardless of the number of employees employed. Definition of Eligible Employee Employee Test All employees employed by the city government are included when determining if the 50-employees-employed-within-75 miles-test is met. Notice of Eligibility "[I]f an employee notifies an employer of the need for FMLA leave before the employee becomes eligible and the employer agrees to the request based on an assumption that the eligibility criteria will be met (or otherwise), the employer may not subsequently challenge the employee's eligibility.... [O]nce the employer commits to an employee's eligibility after requesting FMLA leave, subsequent changes under the employer-coverage or employeeeligibility tests will not affect the employee's right to take FMLA leave." 29 C.F.R (c) 29 C.F.R (d) Overlap of FMLA and Pension Benefits "A decision subsequent to the granting of an FMLA leave request to grant pension benefits with a retroactive effective date for purposes of receiving pension benefits does not... 'preempt' or extinguish an employee's statutory rights under the FMLA." 9

11 No. 27 January 31, 1994 (BNA) 99:3020 Return to Equivalent Position -- After Substance Abuse Rehabilitation Programs There is no conflict between FMLA requirements and employers' substance abuse policies requiring additional substance abuse testing for a period of time following treatment and return to work. Likewise, as a condition of restoring an eligible employee who takes leave for a personal serious illness, an employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the employee's health care provider that the employee is able to resume work. Effect of FMLA on Other Laws The FMLA shall not be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability. 29 U.S.C. 2651(a) No. 28 January 31, 1994 (BNA) 99:3021 Definition of Eligible Employee Any individual employed by a State who is not subject to the civil service laws of the State; who is an employee in the legislative branch or legislative body of that State; and is not employed by the legislative library of the State would not be considered an eligible employee and is not subject to the provisions of the FMLA 29 U.S.C. 2611(3) 29 U.S.C. 203(e) 29 C.F.R Part 825 No. 29 February 7, 1994 (BNA) 99:3022 Effect of FMLA on Other Laws "[N]othing in FMLA modifies or affects any federal or state law prohibiting discrimination on the basis of disability, including the ADA." An employer covered by both the FMLA and the ADA must comply with whichever statute provides the greater rights to employees. 29 C.F.R Intermittent Leave -- Scheduling Employees who need to take FMLA leave intermittently or on a reduced leave schedule must attempt to schedule the leave so as not to disrupt the employer's operations. 29 C.F.R

12 No. 29 (cont'd) Intermittent Leave -- Reassignment of Duties of Employee "[A]n employer may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee's need for intermittent leave or leave on a reduced leave schedule." If an employee is temporarily transferred to an alternative position to better accommodate the intermittent leave, the employer must calculate the employee's FMLA leave so that the employee is not required to take more leave than is medically necessary simply because of the transfer to a new position. 29 C.F.R Intermittent Leave -- Entitlement to 12 Weeks in a 12 Month Period An eligible employee is entitled to take job-protected leave on an intermittent basis under the FMLA until 12 workweeks of leave have been used in a 12 month period. Concerns were expressed that the employee may never exhaust 12 weeks of leave in 12 months if used on an intermittent basis. Wage & Hour confirmed that this result was acceptable: "If the employee never uses as much as 12 workweeks of FMLA leave in a 12-month period, the employee would never exhaust his or her statutory entitlement to take FMLA leave." 29 C.F.R No. 30 March 18, 1994 (BNA) 99:3023 Maintaining Health Benefits -- Multi-employer Plan "If the multi-employer health plan contains an explicit FMLA provision for maintaining coverage, such as through 'pooled contributions' by all employers party to the plan, the employer must ensure that up to 12 weeks of coverage in any 12-month period is maintained for employees on FMLA leave. An employee using FMLA leave cannot be required to use 'banked' hours or pay a greater premium than the employee would have been required to pay if the employee had been continuously employed." 29 C.F.R No. 31 March 21, 1994 (BNA) 99:3024 Definition of Employment Benefits Employment benefits include all benefits to which the employee would be entitled, including but not limited to, group life insurance, health insurance, disability insurance, annual leave, educational benefits, pensions, bonuses. 29 U.S.C. 2611(5) 11

13 No. 31 (cont'd) Accrual of Benefits -- Bonuses "If a bonus is calculated based on hours worked or yearly or monthly earnings, the FMLA leave-taker would naturally receive a lesser amount. Conversely, any methodology for calculating bonuses that are not based on worktime or accrued earnings cannot be reduced at all for FMLA leavetakers who qualified for the bonus before they started FMLA leave and return to work and continue an otherwise perfect record for the remainder of the bonus period." 29 C.F.R (b) 29 C.F.R (c) No. 32 March 24, 1994 (BNA) 99:3026 Maternity Leave and Leave to Care for Newborn "Any period before and after the birth of the child where a mother is not able to work for medical reasons may be considered FMLA leave for a serious health condition, despite the fact that the period after birth is also FMLA leave to care for the newborn child.... Paid leave provided under a plan covering temporary disabilities, such as disability leave for the birth of a child, is considered leave for purposes of FMLA and would be counted in the 12 weeks of leave permitted under the Act.... An employee's entitlement to FMLA leave to care for a newborn child, however, expires at the end of the 12-month period beginning on the date of birth." Employer Determination of the "12- Month Period" for FMLA Entitlement An employer may use any of the following to determine the 12-month period in which the 12 weeks of leave entitlement occur: "(1) The calendar year; (2) Any fixed 12-month 'leave year' such as a fiscal year, a year required by State law, or a year starting on an employee's 'anniversary' date; (3) The 12-month period measured forward from the date any employee's first FMLA leave begins; or (4) A 'rolling' 12-month period measured backward from the date an employee uses any FMLA leave (except that such measure may not extend back before August 5, 1993, the effective date of FMLA)." 12

14 No. 33 March 29, 1994 (BNA) 99:3027 Substitution of Paid Leave "An eligible employee may elect, or an employer may require the employee, to substitute any accrued paid vacation, personal, family, medical or sick leave for any of the 12-week FMLA leave period under certain conditions. Paid vacation leave, personal leave, or family leave may be substituted for all or part of any unpaid FMLA leave for the birth and care of the employee's child after birth, or placement for adoption or foster care, or for the care of a seriously ill family member. Paid vacation leave, personal leave, or medical or sick leave may be used and counted as FMLA leave for the employee's own serious health condition. Paid medical or sick leave may be substituted for FMLA leave for the care of a seriously ill family member only to the extent that the employer's leave plan allows paid leave to be used for that purpose. The use of paid family leave is limited by the normal use of the employer's plan." 29 U.S.C. 2612(d)(2) 29 C.F.R Union Involvement in Negotiating Benefits A union has the right to collectively bargain for greater benefits than those provided under the Act. Thus, a union could bargain for a provision that requires substitution of paid leave to be at the election of the employee only. No. 34 April 12, 1994 (BNA) 99:3028 Substitution of Paid Leave -- Accumulated Compensatory Time The types of accruals that may be substituted for unpaid FMLA leave are types of leave provided by the employer, including paid vacation leave, personal leave, family leave and medical or sick leave. The employee may elect to substitute this leave or the employer may require the substitution of this accrued paid leave for periods of unpaid FMLA leave. Compensatory time off accrued in lieu of cash payment for overtime worked, as allowed under the Fair Labor Standard Act (FLSA) for certain public employers, is not a form of accrued personal leave, nor is it identified in the FMLA as an accrual that may be substituted for unpaid FMLA leave. Nevertheless, a public employee may elect, subject to employer approval, to use accrued compensatory time off for an absence that would otherwise qualify as a reason for taking FMLA leave. If a public employee elects to use accrued compensatory time off for an absence that would otherwise qualify as a reason for taking FMLA leave, the employer may not designate the absence as FMLA leave and thereby reduce the employee's FMLA leave entitlement. 29 U.S.C. 2612(d)(2) 13

15 No. 35 April 19, 1994 (BNA) 99:3029 Effect of FMLA on Other Laws -- Reasonable Accommodation The FMLA's requirements do not permit an employer to require an eligible employee to take a job with a reasonable accommodation instead of taking FMLA leave, but the FMLA does not alter the employer's obligations to offer such accommodations under the respective state or federal law. 29 C.F.R No. 36 May 18, 1994 (BNA) 99:3030 Effect of FMLA on Other Laws "The FMLA does not supersede any provision of State or local law that provides greater family or medical leave rights than those established under the FMLA so long as the state law has jurisdiction over the employer." 29 C.F.R No. 37 July 7, 1994 (BNA) 99:3031 Joint Employers -- Temporary Help Agency "A temporary help agency and the employer using the services are considered joint employers for the purposes of determining employer coverage and employee eligibility for purposes of FMLA. Consequently, the time that the employee was employed by the temporary help agency would be counted towards the eligibility tests." 29 C.F.R (d) No. 38 July 21, 1994 (BNA) 99:3032 Effect of FMLA on Other Laws -- Federal Employees Compensation Act An employee who is receiving Federal Employees Compensation Act benefits and is also on FMLA leave is not required to accept an employer's offer of a light duty job assignment and may not be disciplined for declining it. However, an employee who declines an offer of a light duty assignment will lose his FECA benefits. Effect of FMLA on Other Laws -- Workers' Compensation An employee who is receiving state workers' compensation benefits and is also on FMLA leave is not required to accept an employer's offer of a light duty job assignment and may not be disciplined for declining it. However, an employee who declines an offer for a light duty assignment may lose his state workers' compensation benefits. No. 39 July 21, 1994 (BNA) 99:3033 Collective Bargaining Agreement "The effective date of the FMLA for [collective bargaining agreements] subject to the Railway Labor Act is the first date after August 5, 1993, that the contract is reopened for negotiations, or February 5, 1994, whichever occurs first." 14

16 No. 40 July 25, 1994 (BNA) 99:3033 Effect of FMLA on Other Laws -- Workers' Compensation In some states the employee is not required to maintain group health insurance on an employee absent due to work-related injury or illness, or to re-employ or place the employee in same or equitable job upon return after a certain time period has elapsed. For this reason, it is appropriate for FMLA Leave and Workers' Compensation absences to run concurrently. No. 41 August 8, 1994 (BNA) 99:3034 Return to Equivalent Position -- Renewal of Hospital Medical Residency A hospital is required to return a medical resident to employment after FMLA leave or show that his contract would not have been renewed for some other reason than the taking of FMLA leave. The medical resident also must be given an opportunity to make up any loss in qualifications resulting from the taking of FMLA leave. 29 C.F.R No. 42 August 23, 1994 (BNA) 99:3034 Intermittent Leave -- Transfer to Accommodate Transferring a union employee to an alternative non-union-contract position to accommodate intermittent FMLA leave is permissible if the position has equivalent pay and benefits. In doing so, however, the employer must comply with any applicable collective bargaining agreement in effect, as well as applicable federal and state law. Intermittent Leave -- Amount of Intermittent Leave to be Charged to Employee "[I]f an employee takes FMLA leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted towards the 12 weeks of leave to which an employee is entitled." There is no statutory limit on the size of an increment of leave when an employee takes intermittent leave or leave on a reduced schedule, but leave increments may be limited to the shortest period of time used to account for absence or leave under the employer's payroll system. 29 C.F.R C.F.R (a) Intermittent Leave -- Employee's Refusal to Accept Job Transfer An employee could only refuse a transfer designed to accommodate intermittent leave if the transfer would adversely affect the employee in such ways as increased commuting distance, time or cost. "An employee who refuses a transfer that cannot be shown to have an adverse effect would not be protected by FMLA provisions." 15

17 No. 42 (cont'd) Return to Equivalent Position -- Transfer of Employee to New Job Location after FMLA Leave Due to Elimination of Original Position A transfer to a new job location due to elimination of an employee's original position is permissible because "[a]n employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period." 29 C.F.R Effect of FMLA on Other Laws -- Workers' Compensation The period of time out on workers' compensation status may be counted against the 12-week FMLA leave entitlement provided all other requirements of FMLA are complied with during the period of absence. 29 C.F.R C.F.R Maintaining Health Benefits -- Employer's Recovery of the Cost of Health Care Benefits When Employee Has Chosen Not to Return to Work After FMLA Leave "An employer may recover its share of health plan premiums during a period of unpaid FMLA leave from an employee if the employee fails to return to work after the employee's FMLA entitlement has been exhausted or expires, unless the reason the employee does not return is due to continuation, recurrence, or onset of a serious health condition that would entitle employee to leave under FMLA, or to other circumstances beyond the employee's control. An employee who returns to work for at least 30 calendar days is considered to have 'returned' to work for purposes of FMLA and the employee would no longer have any responsibility to reimburse the employer for group health insurance premiums paid while on unpaid FMLA leave." 29 C.F.R Leave Entitlement of Spouses Working for Same Employer The combined total workweeks of FMLA leave to which spouses employed by same employer are entitled to is limited to 12 workweeks during any 12 month period for the following reasons: birth and care of newborn child; adoption or foster care placement and care after such placement; care of a parent with serious illness (not an in-law parent). Each spouse is entitled to a full 12 workweeks of FMLA leave in any 12 month period for the following reasons: care of spouse or child with a serious health condition; serious health condition that makes the employee unable to perform job duties. 29 C.F.R

18 No. 42 (cont'd) Maintaining Health Benefits -- Termination of Health Care Coverage During FMLA Leave When Employee Does Not Pay His Portion of Premiums. "[A]n employer's obligation to maintain health insurance coverage ceases if an employee's premium is more than 30 days late," but the employer's other obligations under the FMLA continue, including the obligation to return the employee to equivalent benefits after the leave. Thus, an employer may wish to pay to maintain the health care coverage and later recover from the employee the employee's share of any premium payments missed by the employee for any FMLA leave period. 29 C.F.R Designation of Leave An employer may classify medical leave as FMLA leave as long as the employee provides verbal notice sufficient to make the employer aware of the employee's serious health condition and the anticipated timing and duration of the leave. The employee does not need to mention or expressly assert rights under the FMLA for leave to be counted as qualifying FMLA leave. 29 C.F.R FMLA Leave Deducted from Guaranteed Work Hours If all employees who request leave have such time deducted from their guaranteed hours, the employer could follow an identical policy with respect to employees on FMLA leave. The employer may not discriminate against employees who use FMLA leave. 29 C.F.R Accrual of Benefits "An employee may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave... If employees on other types of leave without pay accrue additional benefits or seniority during the unpaid leave status, the same additional benefits and seniority must be provided to the employee on unpaid FMLA leave." 29 C.F.R (d)(2) 29 C.F.R (c) 17

19 No. 43 August 24, 1994 BNA) 99:3038 Definition of Serious Health Condition "[T]he term serious health condition is intended to cover conditions or illnesses affecting one's (or the immediate family's) health to the extent that inpatient care is required, or absences are necessary on a recurring basis for more than a few days for treatment or recovery.... Current regulations cover any period of incapacity requiring absence from work, school, or other regular daily activities of more than 'three calendar days' and continuing treatment by (or under the supervision of) a health care provider." The employee's own serious health condition requiring a greater than three day absence need not be limited to workdays, but may also include non-work days when the employee is unable to carry out regular daily activities. 29 C.F.R (a)(2) Effect of FMLA on Occupational Injury or Maternity Leave "The law does not prohibit the employee's FMLA 12-week leave entitlement from running concurrently with other leaves of absence provided the leaves involve events that qualify under the law." However, an employer is required to designate either an occupational injury or maternity leave of absence as FMLA- qualifying and to notify the employee that the leave will run concurrently with FMLA leave. An employee who takes a qualifying leave may not waive his or her rights to FMLA leave. 29 C.F.R C.F.R (c) 29 C.F.R (d) Effect of FMLA on Paid Short Term Disability Leave "[A]n employer that provides short-term disability leave that includes partial pay and retention of certain benefits should continue to do so in addition to running the unpaid FMLA leave entitlement concurrently." 29 C.F.R (b) Accrual of Benefits "[A]n employer's failure to provide the same level of benefits to an employee on an unpaid FMLA leave as would be provided to an employee who is taking a leave of absence for the same reason but is not eligible for FMLA leave or who is taking unpaid leave for any reason may be discrimination" and considered a violation of FMLA regulations. 29 C.F.R (c) 18

20 No. 43 (cont'd) Designation of Leave "The FMLA requires the employer to designate a qualifying leave of absence as FMLA leave prior to the employee commencing leave, if the event is foreseeable and the employer has sufficient information to make the designation. If the event is not foreseeable, then the employer should designate the leave as FMLA leave when sufficient information has been provided by the employee. Any retroactive designation that a leave of absence is qualifying under FMLA must be made while the employee is on leave and before the employee has returned to work." The employer cannot designate a leave of absence as FMLA leave once the employee has returned to work. 29 C.F.R C.F.R C.F.R No. 44 September 13, 1994 (BNA) 99:3040 Intermittent Leave -- Leave Taken in a Block of Time A covered employer may encourage an eligible employee to take leave in a block of time rather than intermittently, but the difference between the amount of time taken in a block and the amount of time needed for intermittent leave cannot be considered FMLA leave. No. 45 October 14, 1994 (BNA) 99:3041 FMLA Leave Entitlement for Multiple Births Multiple births do not entitle an employee to additional FMLA leave. 29 U.S.C C.F.R C.F.R No. 46 October 14, 1994 (BNA) 99:3042 Definition of Eligible Employee The following are not counted as hours worked for meeting the 1,250 hour FMLA eligibility test: paid or unpaid leave; sick days taken by employee, even if paid sick leave; leave of longer duration; sabbatical leave even if paid. But any week in which the employee is maintained on the payroll for even just a part of the week, "including periods of paid or unpaid leave during which other benefits or compensation are provided by the employer" is counted as a week of employment for meeting the 12-month FMLA eligibility test. 29 C.F.R. 785 Definition of Eligible Employee -- School Employees Full time teachers of an elementary or secondary school system, or institution of higher education, or other educational establishment or institution are deemed to meet the 1,250 hours test unless the employer can clearly demonstrate he or she did not work 1,250 hours in the previous 12-month period. 29 U.S.C. 2611(a) 29 U.S.C

21 No. 47 October 17, 1994 (BNA) 99:3043 Return to Equivalent Position -- Options When Equivalent Position Is Not Vacant upon Employee's Return from FMLA Leave and Employee Is Still Unable to Perform Essential Functions of Job "An employer is not required under the FMLA to create a position that does not exist for an employee who is unable to perform the functions of his or her former position at the end of FMLA leave. If, at the end of 12 weeks of FMLA leave, an employee is still unable to perform the essential functions of the position which the employee held when the leave commenced, the employee has exhausted his job-protected leave entitlement under FMLA and would not be required under the FMLA to be restored to employment in a different job." Nevertheless, an employer may have additional compliance obligations under other federal or state statutes, such as the Americans with Disabilities Act. No. 48 October 19, 1994 (BNA) 99:3043 Medical Certification -- Second and Third Medical Opinion The FMLA prohibits an employer from obtaining a second medical opinion from a health care provider in its employ. This statutory provision is intended to protect an employee whose original medical certification has been challenged by the employer. "If the second medical opinion differs from the original medical opinion, the health care provider to furnish the third medical opinion - which will be final and binding on both parties - is not subject to the prohibition against using a health care provider regularly employed by the employer." But this third medical provider must be jointly approved by the employee and the employer. 29 U.S.C. 2613(c)(2) No. 49 October 27, 1994 (BNA) 99:3044 Waiving FMLA Rights Employees cannot waive their rights under the FMLA by accepting a trade-off of another benefit offered by the employer. The employer is prohibited from inducing an employee to waive his rights under FMLA. No. 50 November 23, 1994 (BNA) 99:3046 Definition of Key Employee "Key employees are salaried employees eligible for FMLA leave and among the highest paid 10% of all employees employed by the employer at or within 75 miles of the employee's worksite." 20

22 No. 50 (cont'd) Return to Equivalent Position -- Key Employees "Employers must grant FMLA leave to a key employee, but may deny restoration if communicated in writing when FMLA leave is requested and only when it is necessary to prevent 'substantial and grievous economic injury' to the employer's operations." Medical Certification "An employer may require a medical certification from a health care provider... for leave due to a serious health condition, and may require a second opinion if the employer has some reason to doubt the accuracy of the first medical certification. If the first and second opinions disagree, the employer may require a third opinion, (at the employer's expense) and a fitness for duty report to return to work." No. 51 November 28, 1994 (BNA) 99:3047 Leave to Care for a Family Member -- Age of Child Needing Care "'Son or Daughter' under FMLA is defined under FMLA... to be a child who either is under 18 years of age or is '18 years of age or older and incapable of self-care because of a mental of physical disability.'" The age on which the child became disabled is not a factor for determining an eligible employee's entitlement to FMLA leave. A parent is not entitled to FMLA leave to care for a child over age 18 who is not disabled within the meaning of the ADA regulations, including a daughter over 18 who has a serious health condition because of pregnancy or is recovering from childbirth. 29 U.S.C. 2611(12) 29 C.F.R (c)(2) Definition of Person Incapable of Self- Care "Incapable of self-care" is defined as "requiring active assistance or supervision to provide daily self-care in several of the activities of daily living." 29 C.F.R (c)(1) 21

23 No. 52 December 28, 1994 (BNA) 99:3049 Substitution of Paid Leave -- Temporary Disability Leave "An employer... cannot require an employee to substitute under FMLA any paid vacation or other leave during the absence that would otherwise be covered by payments from plans covering temporary disabilities. Whether such temporary disability plans are provided voluntarily through insurance or under a self-insured plan or required to meet state-mandated disability provisions," makes no difference. "An employee's receipt of such payments precludes the employee from electing and prohibits the employer from requiring the substitution of any form of accrued paid leave for any part of the absence covered by such payments." No. 53 December 29, 1994 (BNA) 99:3050 Intermittent Leave -- Employer- Imposed Requirements An employer may require 30 days advance notice when the leave is foreseeable. An employer may require a medical certification from the treating health care provider only when the employee or the employee's family member has a serious health condition. No. 54 February 22, 1995 (BNA) 99:3051 Effect of FMLA on Vesting and Eligibility Requirements for Pension "[A]ny period of FMLA leave should be treated as continued service for purposes of vesting and eligibility to participate in pension and other retirement plans." 29 C.F.R (d)(4) Accrual of Benefits An employee may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave. 29 C.F.R (d)(2) 22

24 No. 55 March 10, 1995 (BNA) 99:3052 Effect of FMLA on Other Laws -- ADA and Workers' Compensation Laws The requirements placed upon an employer under the FMLA and the ADA are different, and an employer must comply with both the FMLA and the ADA if an employee with a serious health condition under the FMLA is also a qualified individual with a disability under the ADA. Likewise, an employer must comply with both the FMLA and state workers' compensation laws. Thus, while an employer is prohibited from requiring an employee to accept light duty instead of taking FMLA leave, an employer may be required to offer light duty to the employee by the ADA or Workers' Compensation Laws. If an employee accepts a light duty assignment during what would have been the 12- week FMLA leave period, the employee nevertheless retains the right to job restoration under the FMLA at the end of 12 weeks. Even though this protection is afforded while on light duty, the time on light duty does not count toward the 12 weeks of unpaid leave to which the employee is otherwise entitled. 29 C.F.R (d) 29 C.F.R No. 56 March 28, 1995 (BNA) 99:3054 Accrual of Benefits -- Bonuses "[A]n employee's entitlement to benefits other than group health benefits during a period of FMLA leave is determined by the employer's established policy for providing such benefits when the employee is on other forms of leave." Thus, the following policy would be permissible under the FMLA: If an employee fails to work the entire workweek for any reason, he forfeits the bonus entitlement for that week, except that employees on vacation or absent due to an FMLA-qualifying event receive a portion of the bonus equal to a pro rata share based on the number of days worked in that week. 29 C.F.R (d)(2) 29 C.F.R (c) 29 C.F.R (h) No. 57 April 7, 1995 (BNA) 99:3055 Withdrawn as incorrect construction of FMLA on December 12, See Opinion No

25 No. 58 April 28, 1995 (BNA) 99:3056 Return to Equivalent Position -- Fitness-For-Duty Report If an employer has properly advised an employee in advance of the requirement to submit a fitness-for-duty report and the employee requests to be restored without furnishing the requested report, the employer may delay job restoration until the requested report is furnished. If the employee provides a fitness-forduty report when asking to be restored, the employer may have a health care provider in their employ contact the employee's health care provider with the employee's permission to obtain clarification limited to the serious health condition for which leave was taken. But if the employer does this, the employer must immediately restore the employee and may not delay restoration while contact is being made. 29 C.F.R (c) 29 C.F.R (f) Collective Bargaining Agreement -- Return-To-Work Certification An employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by FMLA, including those provided by a collective bargaining agreement. But any provision diminishing FMLA rights is superseded by the FMLA. "[I]f a collective bargaining agreement does not have a return to work certification procedure, the employer may implement such a procedure provided that it complies with FMLA, and provided further, that implementation of the procedure complies with all applicable requirements under Federal and State law." 29 C.F.R (a) 24

26 No. 59 April 28, 1995 (BNA) 99:3057 Termination for Substance Abuse FMLA protection for treatment for a serious health condition, including substance abuse, "does not prevent an employer from taking employment action against an employee if the employer has an established policy applied in a non-discriminatory manner that has been communicated to all employees." Thus, if an employer has a policy providing termination of employment for substance abuse, the employee may be terminated pursuant to that policy whether or not the employee is taking FMLA leave. In fact, a policy providing for termination in any of the following circumstances is permissible under the FMLA if applied in a non-discriminatory manner: 29 C.F.R (d) 29 C.F.R (g) the employee tests positive for drugs in a random or for cause test and has not requested leave, the employee admits addiction and provides doctor's note that she is being placed in rehabilitative treatment, or the employee tests positive for drugs and is granted leave for treatment, as a condition of reinstatement the employee must submit to weekly testing, and the employee fails one of the weekly tests. No. 60 May 2, 1995 (BNA) 99:3058 Definition of Serious Health Condition "[A] serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider." This definition of serious health condition is intended to cover conditions or illnesses "that affect an employee's health to the extent that he or she must be absent from work on a recurring basis or for more than a few days for treatment or recovery.... With respect to a child, spouse or parent, the term serious health condition is intended to cover conditions or illnesses that affect the health of a child, spouse or parent such that he or she is... unable to participate in school or in his or her regular daily activities.... Where inpatient care is not involved, the regulations require the absence from work or school or incapacity in performing other daily activities to be greater than three calendar days and to include continuing treatment by (or under the supervision of) a health care provider." 29 U.S.C. 2611(11) 25