Family and Medical Leave Act (Part 1)
-The first in a series of three, this article discusses the fundamental components of the Family and Medical Leave Act (FMLA) of 1993.
Pub.Date - 23-Aug-02
by: Christina Morfeld
The Family and Medical Leave Act (FMLA) of 1993 is a federal law designed to help employees balance their work responsibilities with family and medical needs. When certain requirements are met, workers may take up to 12 weeks of unpaid leave with guaranteed health benefits and job restoration.
Eligibility
· Organizations are subject to the FMLA if they are a:
- Private sector employer with 50 or more employees; or
- A public or government agency of any size.
· Employees are covered by the FMLA if they:
- Have been employed by your company for at least 12 months;
- Have worked at least 1250 hours during the previous 12 months;
- Work within 75 miles of a work site that employs 50 or more employees; and
- Have not depleted the 12 weeks allowable under the FMLA during the last 12 months.
· Types of leave that are covered by the FMLA are:
-The birth and care of an employee's child;
-The placement of an adoptive or foster child in the employee's home;
-The employee's own serious health condition; and
-The serious health condition of an immediate family member.
FMLA Period Calculations
· The employer has four options with regard to determining the 12-month period:
-The calendar year;
-Any 12-month "leave year," such as one based on the employee's anniversary date or the company's fiscal year;
-The 12-month period measured forward from the date that the employee's first FMLA began; or
-A "rolling" 12-month period measured backward from the date the employee uses FMLA leave.
· The number of leave hours in the 12-week period depends upon the employee's status:
-Full-timers are eligible for 480 hours of FMLA leave (12 weeks at 40 hours per week).
-Part-timers are eligible for a prorated amount of time off based on their number of weekly scheduled hours.
Married Employees
If both spouses are employed by your organization, they may be limited to a combined total of 12 weeks if the leave is due to the birth or placement of a child or the serious health condition of a parent.
Notice Required by Employee
In order to qualify for leave, the employee must provide at least 30 days' advance notice, whenever possible. Furthermore, when the absence is foreseeable, he or she is required to "make a reasonable effort to schedule the treatment so as not to disrupt unduly" the operations of your business.
It is important to note that the employee need not mention FMLA when requesting leave. It is the employer's responsibility to determine his or her eligibility and proceed accordingly.
Medical Certification
You are permitted to obtain certification regarding the nature of the condition, the date it began, and its expected duration. This holds true whether the individual with the serious health condition is the employee or an immediate family member. If the leave is to care for an ill relative, you may additionally request evidence that such care is required.
The employee can be further obliged to provide periodic status updates and, if the validity of the certification is in doubt, obtain a second opinion at the company's expense. If a conflict is found to exist, the opinion of a third physician is considered final and binding.
You may also require a medical release upon the employee's return to work.
Non-Continuous Leaves
In some cases, leave may be taken intermittently or as part of a reduced work schedule.
· Intermittent leave is time taken for a single illness or injury in separate periods rather than one continuous block of time. An example of this type of leave is occasional three-day absences for chemotherapy treatments.
· Reduced schedule leave means that the employee is working less than his or her normally scheduled hours. An example of this type of leave is an individual returning to work part-time – with the intention of gradually resuming a full-time schedule – after recovering from a heart attack.
In both cases, only the employee's actual time off based on his or her normal work schedule, is counted toward FMLA entitlement. Furthermore, employers are generally required to honor such requests only in situations of medical necessity and, in the case of adoption or foster care, pre-placement meetings, counseling sessions, court appearances, etc.
Benefits and Compensation While on Leave
The employee is entitled to uninterrupted health insurance coverage while on leave, provided that he or she continues to pay his or her portion of the premium. While the employer is not required to maintain other benefits – such as life insurance – for the duration of the leave, these must be restored upon the employee's return to work.
FMLA leave is generally unpaid. As an employer, however, you may either require employees – or give them the option – to use paid time off (e.g., vacation, personal days, sick days, etc.) concurrent with the leave. This "substitution of paid leave" does not in any way extend the 12-week FMLA period.
Job Restoration
Upon return from leave, an employee must be reinstated into his or her previous position or re-assigned to an equivalent one "with equivalent benefits, pay, status, and other terms and conditions of employment." While you are not required to count time out on leave toward benefit accrual, reinstatement must include the continuation of all benefits that had been earned prior to the leave.
Reinstatement requirements cease after the 12 weeks are taken, whether continuous, intermittent, or part of a reduced schedule leave. Subsequent job restoration is at your discretion, even if a leave extension had been approved.
If, during an employee's leave, a layoff or other event occurs that would have changed or eliminated his or her job had leave not been taken, he or she has no greater rights than if employment had been continuous.
In the case of "key employees" – those among the top 10% income bracket of all staff – job restoration is not guaranteed. If the employer determines that it cannot reinstate a highly-compensated employee due to the "substantial and grievous economic injury" it would cause, that individual is entitled to all FMLA rights except job protection.
Other Points to Ponder
Many states have expanded the federal rules to include provisions for reduced eligibility requirements and greater leave time. These laws are based on the state in which the employee works (not lives), and prevail over federal FMLA requirements.
Some organizations opt to relax even the state-level requirements. For example, they might extend benefits to workers employed less than a year, allow maternity leaves of up to 16 weeks, or permit time off for the care of relatives other than those identified as "immediate family members" per FMLA guidelines. While such deviations may not offer the same level of job protection ensured by the FMLA, it is important to keep in mind that – if included in your company's policy manual or other written communications – the courts will probably rule in favor of the employee.
Family and Medical Leave Act (Part 2)
-The second in a series of three, this article defines must-know terminology related to the Family and Medical Leave Act (FMLA) of 1993.
Pub.Date - 06-Sep-02
The Family and Medical Leave Act (FMLA) of 1993 is a federal law designed to help employees balance their work responsibilities with family and medical needs. When certain requirements are met, workers may take up to 12 weeks of unpaid leave with guaranteed health benefits and job restoration.
To fully comprehend your obligations as an employer (or rights as an employee) under the law, you must first be familiar with several key phrases.
· Serious health condition refers to an illness, injury, impairment or physical or mental condition that involves:
o Any period of incapacity or treatment connected with inpatient care (overnight stay or day surgery) in a hospital, hospice or residential medical care facility; or
o Any period of incapacity:
§ Requiring absence of more than three calendar days from work, school or other regular daily activities; and
§ Involving continuing treatment by or under the supervision of a health care provider; or
o Continuing treatment by or under the supervision of a health care provider for:
§ A chronic or long-term health condition that is:
§ Incurable; or
§ So serious that, if not treated, would likely result in a period of incapacity of more than three calendar days; or
§ Prenatal care.
· Incapacity refers to the inability to perform the essential functions of a job, attend school or perform other regular daily activities.
· Continuing treatment refers to either:
o Two or more treatments by a health care provider; or
o One treatment by a health care provider followed by a “regimen of treatment” – such as prescription medication – under his or her supervision.
· Health care providers who are qualified to give FMLA medical certification – provided that they are appropriately licensed and performing within the scope of their duties – are:
o Physicians
§ Doctors of medicine (M.D.)
§ Doctors of osteopathy (D.O.)
o Podiatrists
o Dentists
o Clinical psychologists
o Clinical social workers
o Optometrists
o Nurse practitioners
o Nurse midwives
o Chiropractors and Christian Science practitioners (with certain limitations)
· Immediate family members refers to an employee’s:
o Husband or wife (including “common law” spouse if recognized by the employee's state of residence)
o Children
§ Biological, adopted, foster, step or legal ward
§ Up to the age of 18 (unless “incapable of self-care” due to mental or physical disability)
o Parents
§ Biological or “in loco parentis”
§ Not parents-in-law
Armed with a clear understanding of “who” and “what” are covered under the FMLA allows you to approve and decline leave requests properly, consistently, and with the confidence of knowing that you are operating within the law. In fact, you may wish to incorporate this same language into your corporate leave policies, which generally run concurrently with the FMLA, to minimize misunderstanding and facilitate administration.
Family and Medical Leave Act (Part 3)
-The last in a series of three, this article explores the Family and Medical Leave Act’s relationship with other laws.
Pub.Date - 07-Oct-02
While the intricacies of the Family and Medical Leave Act of 1993 are well known, they are not necessarily understood. Even the most seasoned HR Pro’s heart might skip a beat each time a new FMLA case crosses his or her desk.
To complicate matters even further, there is the issue of the Act’s interaction with other laws – specifically, Title VII, Workers’ Compensation, and the Americans with Disabilities Act. It is important to understand this interplay if you are to fully meet your obligations under the law.
Title VII of the Civil Rights Act of 1964
Private companies and local and state government agencies employing 15 or more individuals are subject to Title VII compliance. An employee’s tenure does not play a role in eligibility.
Under Title VII, pregnancy and pregnancy-related conditions are considered temporary disabilities for employment purposes, including leaves of absence. A pregnant employee, therefore, must be eligible for benefits under her employer’s short-term disability policy, if one exists, even if she is ineligible for leave under the FMLA. Conversely, an organization that does not offer a short-term disability policy must still grant a leave to a pregnant employee if FMLA eligibility requirements are met.
Workers’ Compensation
While Workers’ Compensation (WC) statutes vary from state-to-state; most include medical treatment and income continuation provisions for absences resulting from work-related injuries and health conditions.
An injury or health condition that develops as a result of an individual’s job may also qualify as a “serious health condition” under the FMLA. In these situations, FMLA benefits run concurrently with the absence under WC. If an employee is unable to return to work after his or her FMLA entitlement expires, FMLA protection no longer applies.
If a health care provider determines that an employee is capable of returning to “light duty” work – but not the same or equivalent job – the employee may decline. In this case, WC benefits cease but the employee continues to be eligible for the amount of leave remaining under the FMLA.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) applies to private employers with 15 or more workers and all local and state government agencies. Employees must have worked 20 or more weeks of the current or preceding calendar year to be eligible.
What is determined to be a “disability” under the ADA may also meet the FMLA requirements for a serious health condition. If an employee’s impairment qualifies as both, the ADA and FMLA leaves run concurrently.
While these two definitions must be considered separately, the major difference between them is the extent of the impairment: A serious health condition under the FMLA is one that temporarily prevents the employee from performing the functions of his or her current job, whereas a disability under the ADA limits one or more “major life activities” on an ongoing basis.
Under the ADA, employers are required to make “reasonable accommodations” for qualified disabled individuals. Because leaves of absence are considered one such accommodation, an employee may continue to be eligible for leave – provided it does not cause undue hardship (by way of disruption or expense) for the employer – even after his or her FMLA entitlement is exhausted. Unlike the FMLA, there is no maximum time period for leave or other accommodations under the ADA.
While the FMLA allows a company to reinstate an employee to the same or equivalent job, an employer’s responsibilities in terms of accommodating disabled workers under the ADA is strictly in relation to the same job he or she held before the impairment.
If, as a reasonable accommodation under the ADA, a disabled employee is reduced to a part-time work schedule, his or her employer is not required to continue his or her health coverage if such benefits are not provided to other part-time workers. On the other hand, if an employee works a reduced work schedule under the FMLA, the employer must maintain his or her group health benefits until the equivalent of 12 weeks of leave is exhausted.
Temporary impairments such as broken bones, pregnancy, and non-chronic illnesses – while not requiring leave or special accommodations under the ADA – may qualify for FMLA entitlement.
Implications
The interplay between the laws described in this article is one that HR folks and employment attorneys struggle with on an all-too-frequent basis. As employers can be held separately liable for violations of each of these statutes, it is important that each instance of extended absence be dealt with on an individual basis.
Be proactive: Whenever an employee requests leave under any of these laws, carefully review the circumstances for eligibility under each of the others. Continue to monitor each case for changes in status that may trigger new legal entitlements for incapacitated employees.
Anticipating and “red-flagging” potential issues are well worth the time and effort: Not only will the task of leave administration be a bit less daunting, but you will also have the peace of mind that comes with knowing that you have navigated this myriad of regulations in a fair and legal manner.