Human Resources: May I Permanently Hire Someone to Replace an Employee Who''s Out for FMLA Leave?

Excerpted from West Virginia Employment Law Letter; written by the law firm of Steptoe & Johnson PLLC

Q: I have an employee who needs to take time off for a medical procedure that requires an extensive recovery period. My business can''t afford to operate without him for such a long time. May I permanently hire someone for his position?

A: That depends. There are a few legal issues that you must consider. You should determine whether your business is subject to the provisions of the Family and Medical Leave Act (FMLA), in which case you''re required to provide a certain amount of unpaid leave time to the employee and guarantee his reinstatement in the same or a comparable job.

Q: How do I know if I''m covered by the FMLA?

A: The FMLA is a federal law. Although it doesn''t apply to every business, it applies to all businesses that engage in or affect interstate commerce and have a minimum of 50 employees. In other words, if you have 50 employees and your business does any work that crosses state lines - or has some impact in another state - you''re subject to the law''s provisions. Also, public agency employers are subject to the provisions of the Act even if they don''t have 50 employees. If you''re a covered employer, your employee must be eligible to take the leave - that includes working at a facility with 50 or more employees within a 75-mile radius.

Q: I think my business meets those criteria. Do I have to give my employee unlimited time off for medical reasons?

A: No. The FMLA requires only that you allow the employee to take 12 weeks of unpaid leave in a 12-month period for "qualifying events." You can require the employee to use up paid leave as part of the 12-week FMLA leave period as well.

Q: What is considered a qualifying event?

A: It can include the birth or adoption of a child, a serious health condition of the employee, or a serious health condition of an employee''s close family member or dependent - such as a parent, child, or spouse. "Serious health conditions" include those that require the absence of more than three days from work, pregnancy under certain circumstances, chronic health conditions that require frequent treatments, and conditions that could become chronic if left untreated.

Q: If the employee doesn''t use all 12 weeks and later requests another period of leave for a "qualifying event," must I grant the additional leave?

A: Probably. The FMLA permits the leave to be taken intermittently as long as it doesn''t exceed a total of 12 weeks during the relevant 12-month period.

Q: Can I require the employee to provide documentation of the illness or medical procedure?

A: Yes. Your employee is required to provide you with medical documentation of the illness. You must advise the employee of that requirement and allow 15 days to comply. If you have a valid question about the certification, you may require a second opinion from a doctor of your choice, as long as the physician isn''t affiliated with your business. The U.S. Department of Labor has developed a form that you may want to use.

Q: Are there any other laws that I should consider?

A: Yes. Any time you have employees with an ongoing health concern, they may be considered to have a disability under the Americans with Disabilities Act. If you have an employee who qualifies as an individual with a disability, you must comply with the requirements of federal and state laws.

Copyright 2003 M. Lee Smith Publishers LLC. This Q&A is an excerpt from WEST VIRGINIA EMPLOYMENT LAW LETTER. WEST VIRGINIA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of West Virginia does not certify specialists in the law, and we do not claim certification in any listed area. For further information about the content of any article in this newsletter, please contact any of the editors.