Family Medical Leave
Family Medical Leave Act (FMLA) provides that private employers with more than 50 employees must provide 12 weeks of unpaid, job-protected leave and continued health benefits to certain employees who are affected by a serious health condition, the birth or adoption of a child, or the serious health condition of a spouse, child, or parent. In addition to the granting of leave and reinstatement after a leave, the FMLA requires that covered employers provide employees with information about their FMLA rights, and dictates the nature and handling of medical information obtained from employees.
Eligible employees
Only eligible employees are entitled to take FMLA leave. An eligible employee is one who:
•Works for a covered employer;
•Has worked for the employer for at least 12 months; (Do not have to be consecutive)
•Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave*; and
•Works at a location where the employer has at least 50 employees within 75 miles.
Leave entitlement
Eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons:
•The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;
•To care for a spouse, son, daughter, or parent who has a serious health condition;
•For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
•For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.
What constitutes a “serious health condition”?
•A serious health condition can be physical or mental.
•Whether or not a condition qualifies for FMLA leave is not left to the subjective judgment of the employer or the employee.
•The law defines a serious health condition as a period of incapacity or treatment that is
•(1) Connected with inpatient care,
•(2) Requires an absence of more than three days from work and involves care from a health care provider,
•(3) Due to pregnancy or the need for prenatal care, or
•(4) Involves a chronic, serious health condition.
•This is a broad definition, and employers should be thoughtful in assessing whether or not an employee’s circumstances present
a covered condition.
What triggers FMLA rights?
What proof of the need for leave does the employee have to provide?
FMLA-Intermittent Leave
The FMLA provides that qualified employees of covered employers may take a few hours a day, a few days a week, or any other configuration of leave that a health care provider determines is necessary to allow the employee to manage a qualifying condition or circumstance.
PROTECTIONS DURING FMLA LEAVE
Group Health Insurance Benefits
Benefits Other than Health Insurance
Substitution of Paid Leave
Protections upon return from FMLA Leave (Job Restoration)
Many employees (and employers) misunderstand what FMLA protection means. They assume that this protection provides them with a certain immunity from being terminated – i.e. that they cannot be terminated while on FMLA leave no matter what. This is not entirely correct.
Prohibitive actions by employer
Coordinating FMLA leave with other types of time off-Overview.
FMLA + ADA Reasonable Accommodation.
FMLA + Employer Leave Policies.
FMLA + Benefits.
Eligible employees
Only eligible employees are entitled to take FMLA leave. An eligible employee is one who:
•Works for a covered employer;
•Has worked for the employer for at least 12 months; (Do not have to be consecutive)
•Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave*; and
•Works at a location where the employer has at least 50 employees within 75 miles.
Leave entitlement
Eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons:
•The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;
•To care for a spouse, son, daughter, or parent who has a serious health condition;
•For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
•For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.
What constitutes a “serious health condition”?
•A serious health condition can be physical or mental.
•Whether or not a condition qualifies for FMLA leave is not left to the subjective judgment of the employer or the employee.
•The law defines a serious health condition as a period of incapacity or treatment that is
•(1) Connected with inpatient care,
•(2) Requires an absence of more than three days from work and involves care from a health care provider,
•(3) Due to pregnancy or the need for prenatal care, or
•(4) Involves a chronic, serious health condition.
•This is a broad definition, and employers should be thoughtful in assessing whether or not an employee’s circumstances present
a covered condition.
What triggers FMLA rights?
- A request for leave or formal notification of an employee’s serious illness, injury, or pregnancy always requires that a covered employer review the employee’s eligibility for FMLA leave.
- Employers also have a responsibility to recognize facts and circumstances that could reasonably trigger FMLA eligibility, even if an employee does not specifically refer to FMLA leave or formally request time off.
What proof of the need for leave does the employee have to provide?
- Employers may require that a request for FMLA leave be supported by certification from a health care provider.
- Health care providers who can certify the need for leave include doctors of medicine or osteopathy, dentists, psychologists, chiropractors, nurse practitioners, and others who are authorized to provide health services by state law.
- Employees have to be given at least 15 calendar days to obtain medical certification.
- Employers should be careful to limit requests for medical information and avoid requesting or obtaining unnecessary details of an employee’s (or family member’s) health history or health status.
- If an employer is not satisfied with the certification provided by the employee’s health care provider, the FMLA specifies a process through which the employer can obtain a second opinion.
FMLA-Intermittent Leave
The FMLA provides that qualified employees of covered employers may take a few hours a day, a few days a week, or any other configuration of leave that a health care provider determines is necessary to allow the employee to manage a qualifying condition or circumstance.
- Qualifying for intermittent leave under the FMLA is essentially the same as qualifying for FMLA leave of a longer duration.
- The FMLA specifically allows employees to take unpaid, protected leave on an intermittent basis, or work a reduced schedule, when they are affected by their own or a family member’s serious health condition.
- Intermittent leave can also be used for child care for a newborn or after the placement of an adopted or fostered child.
- A request for intermittent leave deserves no more or less scrutiny than a request for a leave of longer duration.
- Employers cannot require a doctor’s note for every instance of intermittent leave.
- A health provider’s initial certification of the need for intermittent leave can be required, and just as with other forms of FMLA leave, employers can request a health provider’s recertification of the need for intermittent leave every 30 days, any time circumstances change, or when the employer reasonably suspects the certification may no longer be valid.
- Employers calculate the number of leave hours an employee is entitled to based on the employee’s regular workweek.
- An employer can require that any available paid leave and intermittent FMLA leave be taken concurrently.
- The employer can also require that intermittent leave be taken in increments determined by the employer’s paid leave policy.
- An employee always has the option to take only unpaid FMLA leave for the medical appointment, and an employer can choose to make an exception to its policy and allow the employee to take paid leave in a smaller increment.
- Employees are required to consult with their employers to schedule foreseeable medical treatments to minimize the impact of their absences.
PROTECTIONS DURING FMLA LEAVE
Group Health Insurance Benefits
- If an employee is provided group health insurance, the employee is entitled to the continuation of the group health insurance coverage during FMLA leave on the same terms as if he or she had continued to work.
- If family member coverage is provided to an employee, family member coverage must be maintained during the FMLA leave.
- The employee must continue to make any normal contributions to the cost of the health insurance premiums.
- If the employee’s premium payment is more than 30 days late, the employee’s coverage may be dropped unless the employer has a policy of allowing a longer grace period.
- If paid leave is substituted for FMLA leave, the employee’s share of group health plan premiums must be paid by the method normally used during paid leave (usually payroll deduction).
- The employer must provide written notice to the employee that the payment has not been received and allow at least 15 days after the date of the letter before coverage stops.
Benefits Other than Health Insurance
- An employee’s rights to benefits other than group health insurance while on FMLA leave depend upon the employer’s established policies.
- Any benefits that would be maintained while the employee is on other forms of leave, including paid leave if the employee substitutes accrued paid leave during FMLA leave, must be maintained while the employee is on FMLA leave.
Substitution of Paid Leave
- FMLA entitles eligible employees to take unpaid leave. Under certain conditions, employees may “substitute,” or run at the same time as their FMLA leave, accrued paid leave (such as sick or vacation leave) to cover some or all of the period of FMLA leave.
- An employer may also require employees to substitute accrued paid leave for unpaid FMLA leave even when the employee has not elected to do so.
- If an employee does not meet the requirements to take paid leave under the employer’s normal leave policies, the employee may still take unpaid FMLA leave.
- Paid leave taken for reasons that do not qualify for FMLA leave does not count against the employee’s FMLA leave entitlement.
Protections upon return from FMLA Leave (Job Restoration)
- When an employee returns from FMLA leave, he or she must be restored to the same job or to an "equivalent job". The employee is not guaranteed the actual job held prior to the leave.
- An equivalent job means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location).
- Equivalent pay includes the same or equivalent pay premiums, such as a shift differential, and the same opportunity for overtime as the job held prior to FMLA leave.
- An employee is entitled to any unconditional pay increases that occurred while he or she was on FMLA leave, such as cost of living increases.
- Pay increases conditioned upon seniority, length of service, or work performed must be granted only if employees taking the same type of leave for non-FMLA reasons receive the increases.
- All benefits an employee had accrued prior to a period of FMLA leave must be restored to the employee when he or she returns from leave. An employee returning from FMLA leave cannot be required to requalify for any benefits the employee enjoyed before the leave began.
Many employees (and employers) misunderstand what FMLA protection means. They assume that this protection provides them with a certain immunity from being terminated – i.e. that they cannot be terminated while on FMLA leave no matter what. This is not entirely correct.
- An employee who requested FMLA leave or who is already on FMLA leave can be terminated for any legitimate reason that any other employee could be fired. FMLA leave is not a shield from that termination.
- This includes such typical reasons as misconduct, insubordination, policy violations, and performance issues.
- That employee can also be laid off like anyone else due to workforce reduction, restructuring, etc.
- The fact that the reason provided does not seem to be fair does not make that termination illegal.
- FMLA prohibits discrimination on the basis of exercising FMLA rights; it doesn’t mean that the employee should be treated better or with more lenience than other employees.
- If you are terminated while on medical leave or shortly after requesting it, it creates a suspicion that the true reason for your termination is exercising your FMLA rights, which would be illegal.
- Timing of termination relative to FMLA leave is generally not enough to provide FMLA discrimination and retaliation.
- If an employee is laid off during the period of FMLA leave, the employer must be able to show that the employee would not have been employed at the time of reinstatement.
- Even if your termination would be illegal under FMLA, the employer can still choose to violate the law and fire you, and then deal with the legal consequences of illegal firing, if and when you decide to pursue a case against them.
- Employers often intentionally violate the law and fire employees illegally because they just don’t want them around any more and they are willing to pay for it by spending money on defending the case against them and paying out settlements.
Prohibitive actions by employer
- An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right.
- An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right.
- An employer is prohibited from discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA.
- Refusing to authorize FMLA leave for an eligible employee,
- Discouraging an employee from using FMLA leave,
- Manipulating an employee’s work hours to avoid responsibilities under the FMLA,
- Using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or,
- Counting FMLA leave under “no fault” attendance policies.
Coordinating FMLA leave with other types of time off-Overview.
- There are a number of federal, state, and local laws governing leave. In addition to the FMLA, the Americans with Disabilities Act (ADA) and Title VII can impact employees’ leave rights. State and local laws, including workers compensation laws, may impose requirements related to an employee’s absence from work due to an injury, disability, or illness.
- When multiple laws apply, federal regulations direct an employer to provide leave under whichever statutory provision provides the greater rights to the employee.
FMLA + ADA Reasonable Accommodation.
- The two laws are triggered by different circumstances and qualifications, even though both may apply to a particular circumstance.
- A “serious health condition” that qualifies for protected leave under the FMLA may or may not be a “disability” requiring reasonable accommodation under the ADA.
- Leave related to an employee’s own medical condition may be required by the ADA, the FMLA, and state or local laws, but leave requested in connection with the serious medical condition of an employee’s family member is only required by the FMLA and some corresponding state laws.
- The FMLA requires 12 workweeks of leave in a 12-month period, while an employee with a disability may be entitled to more than 12 weeks of unpaid leave as a reasonable accommodation under the ADA.
- The best approach is to independently evaluate the requirements of each applicable law, establish what is required to comply, and then assess how the requirements overlap.
FMLA + Employer Leave Policies.
- In addition to navigating federal, state, and local regulations, covered employers must integrate FMLA requirements with their own leave and attendance policies, such as policies on paid time off (PTO), vacation, sick, short-term disability, and long-term disability.
- A sick or PTO policy is an obvious place to start, but make sure to consider whether conflicts lurk in policies such as those governing attendance, leave requests, leave scheduling, calling-in absences, and documentation of leave requests.
- Although an employee generally must comply with company policies when requesting FMLA leave, such policies must be in compliance with the law’s requirements.
- A company prohibition on using PTO during the busy season, for example, may conflict with an employee’s need to take leave under the FMLA. In such cases, the company policy may need to be modified, or be subject to exceptions, to comply with the requirements of the FMLA.
- An employer’s requirements for documentation of the reason for taking sick leave may not track the documentation requirements of the FMLA. Many employers have chosen to add a disclaimer to their leave policies, stating that conflicts between policies and federal, state, or local laws will be resolved in favor of compliance.
- Employers also need to understand if and when employees can be forced to use up accrued paid leave while on FMLA leave.
- The FMLA generally permits employers to require the use of accrued paid time off during a leave. This means that the employee receives pay pursuant to the employer’s paid leave policy during a period of otherwise unpaid FMLA leave.
- There is one exception, however: employers may not require employees who are eligible for FMLA leave due to their own “serious health condition” to use accrued paid time off if the employee also qualifies for disability benefits under an employer disability plan or a state disability insurance plan.
- Finally, the existence of short or long-term disability benefits does not alter a covered employer’s obligations to abide by the FMLA, and employers cannot refuse to allow FMLA leave just because STD and LTD are available.
- Employers must also make sure that third-party administrators processing leave requests understand and comply with the FMLA.
FMLA + Benefits.
- The FMLA requires employers to maintain an employee’s health insurance coverage during FMLA leave, but employers are permitted to suspend the accrual of benefits such as PTO as long as they carry out any suspension in a non-discriminatory manner and the suspension policy applies to employees on all forms of leave.
Sutter Disability Management
PO Box 160128, Sacramento, CA 95816
Main Phone 855-781-0855 Fax Phone 855-781-0860
[email protected]
PO Box 160128, Sacramento, CA 95816
Main Phone 855-781-0855 Fax Phone 855-781-0860
[email protected]