FMLA Questions And Answers

-Questions and answers from the Family & Medical Leave handbook.
From Family & Medical Leave Handbook, ©Thompson Publishing Group, Inc.

1. Q: After an employee was put on administrative leave for disciplinary reasons, he brought the employer medical certification of his chronic diabetes. He wants to go on FMLA leave, but the employer has decided to fire him. Is the employee entitled to 12 weeks of job-protected leave?

A: This question illustrates the tension that may exist between protections provided by the statute and the regulations. Section 825.220 of the agency rules provides that employers are prohibited from interfering with the statutory rights of employees by discharging or otherwise discriminating against them for exercising rights provided by the FMLA. At the same time, §825.216 provides that during the period of FMLA leave, employees have no greater right to the benefits and conditions of employment than if they were continuously employed. To terminate and deny leave, the employer would have to show that the individual would not otherwise have been employed regardless of the request to exercise leave rights.

In this factual setting, there are some problems of appearance. To begin with, the employee was not immediately terminated once the facts triggering discipline became known; rather, he was put on administrative leave. Only after he asserted his statutory rights was the disciplinary action converted into a potential termination. This timing alone may give rise to an inference that the termination was linked to his assertion of statutory rights.

The employer may be able to proceed with the desired termination if it can demonstrate that: 1) the initial step was a preliminary action taken while further investigation was underway (and the employer consistently operated in this manner with respect to similarly situated employees); and 2) it had a consistent practice of terminating employees for the transgression that led to this employee´s discipline. In such circumstances, however, the employer should recognize that it may have to put on a strong case to demonstrate that it would have taken this action even in the absence of the exercise of protected statutory rights.

2. Q: Can a male use paid sick leave for childbirth leave?

A: A male employee can use certain forms of paid leave for childbirth and to care for the newly born child. Clearly, paid vacation, personal or family leave can be designated to run simultaneously with otherwise unpaid leave by either the employee or the employer. On the other hand, substitution of paid medical/sick leave is limited to circumstances in which the employee or a family member has a serious health condition.

In the case of childbirth, assuming that the new baby is healthy, it is conceivable that the male employee will be providing care to the recovering mother/spouse. To the extent the mother continues to experience a serious health condition following childbirth, the male employee might be able to use accrued paid leave to care for her, but this flexibility could be limited.

The DOL rules provide that substitution of paid sick/medical leave is essentially defined by the employer´s policy. The employer is not required to allow an employee to use paid leave in circumstances in which its uniform policy would not normally allow the use of that paid leave. The same would be true with respect to any serious health condition affecting the newborn child - to the extent the circumstances meet the employer´s usual requirements for the use of paid medical/sick leave, it might be applied to the period of statutorily protected leave.

3. Q: A teacher is employed by a school district to teach part-time, which under her contract amounts to 980 hours in a school year. In addition, she works a "supplemental job" as director of the dance team for the same school district. Should the hours she works in the two positions be added together to determine her eligibility for Family and Medical Leave Act (FMLA) leave?

A: Yes. Under the U.S. Department of Labor (DOL) regulations, states or political subdivisions of states, such as localities, constitute a "single employer" for purposes of determining employee eligibility for the FMLA. Here, the teacher works for the same employing entity (that is, the school district) at both jobs, and all hours worked for that employer should count toward the 1,250 hours she needs to have worked to establish FMLA eligibility.

4. Q: An employee has a chronic serious health condition that requires her to take intermittent leave. The doctor has certified that the employee´s condition probably will not improve, although the illness may go into remission from time to time. How often can the employer require recertification of the medical condition? Who should pay for the visits to a health care provider to receive the recertification?

A: Section 825.308 of the regulations outlines the general framework for recertifications of serious health conditions triggering leave rights under the statute. It provides that as a general rule - with respect to pregnancy, chronic or permanent/long-term conditions - an employer properly can seek recertifications every 30 days, but only in connection with employee absences. The 30-day limitation can be avoided only if: 1) the employer receives information that casts doubt upon the employee´s stated reason for the absence; or 2) if circumstances described in the previous certification (for example, the severity of the condition or the duration and frequency of absences) have changed significantly.

If the original certification of the health care provider covered a period of more than 30 days, the employer may not request a recertification until the period covered in the certification has passed - unless one of the two circumstances specified above is present, or if the employee requests an extension of leave. This same rule also applies to statutory leave taken intermittently or on a reduced-leave basis: the employer must wait until after the period of incapacity specified in the original certification has run, or one of the identified three circumstances are present.

Events that do not fall into these categories allow for an alternative recertification every 30 days, but that may not be available in the case of intermittent leave for which a long minimum period of incapacity and treatment were provided by the initially certifying health care provider.

The question of who bears the cost of recertifications under the federal leave statute is more straightforward. The DOL´s Wage and Hour Division, in the Preamble to the FMLA regulations published in 1995, stated that the employee must pay the cost for such visits, unless the employer voluntarily chooses to absorb or contribute to such costs. 60 Fed. Reg. 2225 (Jan. 6, 1995).

5. Q: An employee wants FMLA leave in order to have bunions removed from her foot. Can we disapprove the leave at this time if it would cause workflow problems?

A: At issue are questions of whether a bunion is a serious health condition so as to trigger FMLA protections, and if so, whether an employer has the right to limit the times when a procedure to correct or improve that condition might take place.

A bunion is a misalignment of the big toe that results in an unsightly, sometimes painful bump. The tendency to develop bunions may be inherited, and can be aggravated by footwear that is too narrow and cramps the toes. Bunions typically are first treated in non-surgical ways, such as wearing roomier shoes, wearing cushions or pads over the irritated areas, and obtaining customized shoe inserts. Ultimately, however, bunions can become so painful that the individual cannot wear shoes and surgery becomes necessary, which typically is done on an outpatient basis.

Pain from such conditions could possibly become so severe that the individual does experience a period of incapacity - that is, is unable to work - for several days, and must receive continuing treatment by a health care provider, such as a podiatrist. If the need for leave is foreseeable based on planned medical treatment, employees are required to provide at least 30 days´ advance notice before leave is to begin. If 30 days´ notice is not practicable due to a change in circumstances or medical emergency, notice must be given as soon as practicable.

As to medical treatment of this type, the regulations require the employee to consult with the employer and make a reasonable effort to schedule leave in a way that does not unduly disrupt the employer´s operations. According to the DOL, "[w]hen planning medical treatment, the employee must consult with the employer and make a reasonable effort to schedule the leave so as not to disrupt unduly the employer´s operations, subject to the approval of the health care provider. Employees are ordinarily expected to consult with their employers prior to the scheduling of treatment in order to work out a treatment schedule which best suits the needs of both the employer and the employee." The employee´s failure to do so may provide a basis to deny leave at this time, for a limited period. On the other hand, if notice is provided well in advance, or if the particular circumstances fall into the category of medical emergency (complications, sharply limited mobility), such a hard line may be inadvisable.

6. Q: Is a woman entitled to 12 weeks of childcare leave after the birth of a baby, even if her doctor has released her to return to work before that?

A: Yes. The period of leave protected by the statute applies not only to conditions associated with pregnancy, the childbirth process and recovery, but also for the purpose of providing care to newborn infants.

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