HUMAN RESOURCES: Demystifying the Family and Medical Leave Act

Ever since the Family and Medical Leave Act (FMLA) became effective on Aug. 5, 1993, employers and employees have struggled to understand when it applies and how it’s administered. Here are answers to some of the more frequently-asked questions about the Act:

1. Does it apply to my employees?

While the FMLA applies to all public agencies at the federal, state and local level (including educational agencies), it applies only to those private sector employers who employ 50 or more for at least 20 work weeks in the current or preceding calendar year. In determining whether an employer meets this threshold, an employer must count all full- and part-time employees and those employed through temporary employment agencies. If a company has more than 50 employees, but less than 50 at a particular location, the FMLA applies only if more than 50 people work within a 75-mile radius of the business location.

2. If my business is covered by the FMLA, are all of my employees eligible for leave?

No. In order to be eligible, an employee must have worked for the employer for at least one year and at least 1,250 hours during the 12 months prior to the start of the FMLA leave.

3. What events can trigger entitlement to FMLA leave?

An employee can receive up to 12 work weeks of unpaid leave in a 12-month period for one or more of the following reasons:

* Employee is unable to work due to a serious health condition.

* For the birth of a child or placement of an adopted or foster child with the employee.

* Employee requests leave to care for an immediate family member (spouse, child or parent; not “in-laws”) with a serious health condition that requires on-going medical care and/or results in an absence from work for at least three days. Leave to be with a newborn, adopted or foster child must be completed within one year after the birth or placement of the child.

4. An employee has just requested FMLA leave beginning next week. He expects to miss approximately six weeks of work. What are my rights?

You have two important rights at this juncture. First, the FMLA requires that an employee give you at least 30 days advance notice of the need for an FMLA leave or give you notice as soon as is practicable. It’s appropriate to ask as to when he learned of the need for the leave.

Second, you have a right to request certification of the need for the leave. If it’s for a serious health condition that prevents the employee from working, you can request certification from the employee’s health care provider. If you’re dissatisfied with the information, you can have the employee examined at your expense by a physician of your choice. You can also request certification if the leave is requested to care for a family member with a serious health condition, or for the birth or placement of a child.

5. What are my obligations when an employee requests leave?

It is imperative that an employer comply with the strict notice requirements set forth by the Department of Labor (DOL). When an employee requests leave–even informally–the employer must, within two business days, provide written notice to the employee of all rights and responsibilities under the FMLA.

The DOL has forms to assist employers in complying with its regulations. Failure to give proper notice may result in the employee receiving in excess of 12 weeks of leave.

6. An employee has requested two hours off three days a week for physical therapy for injuries she sustained in a car accident. Do we have to allow her to do so under the FMLA?

Yes. The FMLA specifically provides that employees can take intermittent leave or work a reduced schedule when necessitated due to a serious health condition or to care for an immediate family member with a serious health condition. The employer has the option of granting intermittent leave following the birth or placement of a child, but is not required to grant intermittent leave for this purpose.

7. You said that FMLA leave is unpaid. Can I force an employee to use vacation time while on FMLA leave?

You can “coordinate” FMLA leave with other forms of paid or unpaid leave. But you must notify the employee in your two-business-day written notice. If you don’t properly notify the employee, then he or she could conceivably return from a 12-week FMLA leave with all of his or her vacation, sick and personal time intact.

An employer is required to maintain health insurance during the leave. If the insurance is provided at the employer’s expense, the employer must continue this during the leave. If the employee pays for all or part of the coverage, the employer is obligated to make arrangements for the payments to be made during the leave.

While an employer can terminate coverage if the employee is more than 30 days late in paying a premium and then is given at least 15 days written notice advising that coverage will cease if payment is not received, it’s probably unwise to terminate coverage. The employer can recover premiums paid for an employee who fails to return to work from an FMLA leave.

8. Can I re-assign an employee returning from FMLA leave?

Upon returning from leave, the employee must be restored to his or her original job or to an equivalent job. The DOL and courts have interpreted the term “equivalent” narrowly. The job must not only have equivalent pay and benefits, but must also be virtually identical to the original job and have equal prestige within the organization.

An employer can temporarily reassign an employee while he or she is using intermittent leave under the FMLA, but once back, the employee has the same restoration rights.

Mark Williams is a shareholder in the law firm of Faulkner & Williams, PC, in Traverse City. He specializes in employment law, workers’ comp defense litigation and insurance defense litigation. BIZNEWS