The Family and Medical Leave Act of 1993
gives employees yet another reason to sue their employers. The Act sounds
simple enough. Employers must provide their employees with up to 12 weeks of
unpaid leave per year for the birth or adoption of a child, or for the serious
health condition of the employee or a close family member. In practice,
however, the Act is a nightmare. There are detailed notice requirements, all of
which fall on the employer. If an employer violates the Act, it can be sued for
back pay and benefits, liquidated damages, interest, attorney''s fees,
reinstatement, and even promotion.
Exceptions
The FMLA does not, however, apply to
everyone. The Act does not apply to small employers, or to employees who have
been hired recently. Although the exceptions to coverage are few, they are
worth exploring every time an employee requests leave.
In each case, there are two coverage
questions. First, is the employer covered by the FMLA? Second, even if the
employer generally is covered, is the specific employee who is requesting leave
eligible for FMLA benefits? The questions must be considered separately, in
that order.
Employer Coverage
The FMLA applies only to employers who have
had 50 or more full, part-time, or temporary employees on their books for 20 or
more weeks during this calendar year or during the last calendar year. Once an
employer has had 50 employees on its books for 20 weeks, the employer is
covered by the Act -- both for this year, and for the next calendar year. This
is true even if the payroll drops below the 50 employee mark during those two
calendar years -- the employer is still covered until the two years expire.
Employers not covered by the FMLA may
establish their own policies about the length of leave available to employees,
may determine the notice requirements that employees must follow to request
leave, and may retain the discretion to grant or deny leave requests, subject
only to limitations created by other laws, such as the Civil Rights Act of 1964
and the Americans With Disabilities Act. For example, exempt employers must
provide leave for pregnancy to the same extent it provides leave for other
temporary disabilities.
Employee Eligibility
Even if the company has more than 50
employees, however, there are times when the particular employee requesting the
FMLA leave is not "eligible" for it. If the employee is not eligible
under the FMLA -- even though the employer generally is covered because it has
more than 50 employees -- the company does not have to comply with the FMLA
with respect to that employee.
There are two categories of non-eligible
employees. First, employees are not covered until they have worked for the
company for more than 12 months (not necessarily consecutively), and until they
have worked 1,250 hours during the last 12 months. Recent hires, therefore, are
not automatically covered under the FMLA - even if the company generally is. If
there is any doubt about whether an employee who is requesting FMLA leave has
reached this service requirement, the employer should check his length of
employment before granting or denying leave. If an employer grants FMLA leave
by mistake to an ineligible employee, the employer cannot change its mind once
the leave has begun; the employee will be protected.
A second exception exists for employers with
scattered work sites, such as construction companies. Even if the employer has
more than 50 total employees in its home office and on crews in different
regions, employees are eligible under the FMLA only if they are employed at a
work site where there are 50 or more employees within a 75 mile radius. If
fewer than 50 employees are hired for job sites that are within a 75-mile
radius of each other, those crews are not covered by the FMLA.
Sample FMLA Policy
If you are covered by the FMLA, the
following policy is a good starting point. Remember, the consequences of
noncompliance can be costly and further interfere with the operation of your
business.
Family and Medical Leave
·       Â
An employee who has
worked for the Company at least 12 months before the leave request and has
worked at least 1,250 hours during the last 12 months is eligible to take
family or medical leave. Eligible staff may take a total of 12 workweeks of
unpaid leave during any 12-month period when leave is taken for one or more of
the following reasons:
o      Â
Birth or adoption of a
child of the employee, or placement of a child with the employee for foster
care (family leave).
Kollman & Sheehan, P.A. ©
Copyright 2000
~~~~~~~~
Bruce M. Luchansky,
is an associate in the law firm of Kollman & Sheehan, P.A. and he is also
in association with HRLawForum.com, LLC., providing free forums for the
professional HR Manager.
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