THE FAMILY MEDICAL LEAVE ACT
FMLA
FMLA
1.
2.
3.
4.
What is it?
Who is eligible?
What types of leave are covered?
What are employer and employee
obligations under the FMLA?
5. What about intermittent and reduced
leave?
6. Benefits and Reinstatement
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FMLA: WHAT IS IT?
• 1993 Federal Law: Applicable to all
private employers with 50 or more
employees. Eligible employees have
three basic rights:
1.
2.
3.
Absolute entitlement to a total of 12 weeks (total of
480 hours) of leave for one or more qualifying reasons
within a rolling 12 month period. Any additional
leave after the 12 weeks is NOT FMLA leave unless it is
military care giver leave which allows the employee
26 weeks of leave in a rolling 12 month period.
Right to have health benefits continued during leave
on same basis as if working.
Absolute right to reinstatement to same or equivalent
job.
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FMLA: WHAT IS IT?
• Keep in mind that FMLA leave is only 12
weeks (480 hours). If an employee is out
longer than 12 weeks, the time does not
count as FMLA leave and is not protected
by the statute unless it is qualified military
care giver leave.
• If an employee will be out for more than
12 weeks (or 26 weeks for military care
givers), they must request personal leave
through the Company’s personal leave
policy and complete a separate
application form.
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FMLA: WHAT QUALIFIES?
• The care of a child after birth, or
placement of a child for adoption or foster
care.
• The care of a spouse, child or parent with
a serious health condition.
• An employee’s own serious health
condition that makes the employee
unable to perform essential functions of
the job.
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FMLA: WHAT QUALIFIES?
• Leave to care for a family member injured
in the line of active duty (up to 26 weeks).
• Qualifying Exigency Leave (the spouse,
son, daughter or parent of the employee is
on active duty, or has been notified of an
impending call to active duty status, in
support of a contingency operation.)
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FMLA: WHO IS ELIGIBLE?
• Eligibility guidelines:
1. Employed for at least 12 months (need
not be consecutive).
2. Worked 1,250 hours during the twelve
months prior to the leave request
• Refers to actual hours worked.
• Note that military service must be credited as
actual hours worked.
3. Works at a facility with 50 or more
employees within a 75 mile radius.
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FMLA: WHO IS ELIGIBLE?
HOURS WORKED DOES NOT
INCLUDE:
• Vacation
• Holidays
• FMLA time
• Sick Leave
• Any other paid or unpaid time
off
• BUT – military leave does
count.
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FMLA: WHO IS ELIGIBLE
• 12 weeks in 12 months?
• Can be calendar, anniversary, FMLA
leave year, or rolling back.
• We use Rolling 12 month period
• Example: Employee requests leave beginning May
10, 2010. We would look back 12 months to
determine how many hours are available (May 10,
2009 - May 10, 2010). If the employee has used any
hours in the previous 12 months we would deduct
those hours going forward.
• Example: Employee used 60 FMLA hours during
August & September 2009. The same employee is
now requesting a leave beginning May 10, 2010.
The employee would have a total of 420 (480 - 60)
hours available beginning May 10, 2008.
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FMLA: COVERED LEAVE
•
•
•
•
New Child
Serious Health Condition
Military Care Giver
Qualifying Exigency
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FMLA: CHILD CARE
• Child Care Leave: Must be taken within 1
year after birth, placement or adoption.
• Child means 18 years of age or younger
unless the child is incapable of self-care
due to an ADA disability.
• If circumstances require, may begin
before birth, adoption or placement.
• Includes not only biological, adopted,
foster or stepchild, but also one for
whom the employee has actual, day-today responsibility.
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FMLA: SERIOUS HEALTH
CONDITION
• A serious health condition of:
• Employee
• Employee’s spouse
• Under the FMLA, “spouse” does NOT include
unmarried, domestic partners. (However,
CFRA includes domestic partners.)
• Employee’s child (under 18 unless
disabled)
• Employee’s Parent
• If both parents work for LBJCC, we limit
combined leave to total FMLA limit = 12
weeks.
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FMLA: SERIOUS HEALTH
CONDITION
Illness, injury, impairment or physical or
mental condition that involves inpatient care
or continuing treatment.
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FMLA: EMPLOYEE OBLIGATIONS
• Must inform employer of potentially
qualifying reason. Employee is obligated
to respond to questions designed to
determine whether absence is FMLA
qualifying.
• If foreseeable, must give 30 days notice of
need for leave.
• If not foreseeable, must give notice as
soon as practicable.
• Note – employee who calls in “sick” has
not given sufficient notice to trigger FMLA.
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FMLA: EMPLOYEE OBLIGATIONS
• The employee has an obligation to
respond to employer’s questions designed
to determine whether an absence is
potentially FMLA qualifying. If employee
fails to respond, we can deny FMLA
protection.
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FMLA: FITNESS FOR DUTY
• What if the employee fails to provide the
fitness for duty certification upon return?
• Reinstatement can be delayed and, if never
received, employee may be terminated (not
applicable to intermittent leaves).
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FMLA: PAID OR UNPAID?
• Statute does not require paid leave.
• You can use paid leave if you have any
available
• Note: Short Term Disability and Workers’
Compensation leaves run concurrently
with FMLA if they otherwise qualify. If the
leave is FMLA qualifying, the employee
must receive FMLA job and benefit
protection.
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FMLA: INTERMITTENT/REDUCED
LEAVE
• Intermittent: Leave taken for a few
days or even a few hours due to a
single qualifying event; generally
unplanned leave.
• Reduced Schedule: A temporary
reduction of usual number of
working hours per day or week.
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FMLA: INTERMITTENT LEAVE
When is intermittent leave required?
•
•
An eligible employee must generally be
allowed to take intermittent leave when it is
medically necessary for their serious health
condition, a family member’s serious health
condition, a chronic serious health condition,
or military care giver or qualifying exigency
leave.
•
An employer is not required to allow
intermittent or reduced leave for purposes of
birth, adoption, child care leave .
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FMLA: INTERMITTENT LEAVE
• What are responsibilities when leave
is foreseeable?
• If need for intermittent leave is
foreseeable, such as a planned medical
treatment – employee must attempt to
schedule leave in advance to minimize
disruptions to LBJCC operations.
• If unforeseeable?
• If need is not foreseeable, no
requirement that employee schedule
leave in advance.
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FMLA: BENEFITS
• Group health insurance continues during family
and medical leave. We must notify employee of
any plan changes or open enrollment.
• Employee’s responsibility for premiums on same
basis as when regularly working.
• No other benefits are required to be continued
during FMLA leave, but employees must be
reinstated to benefit plan upon return from leave.
• Employees on leave keep accrued benefits.
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FMLA: REINSTATEMENT
EMPLOYEE MUST BE REINSTATED TO SAME OR
EQUIVALENT POSITION.
Equivalent Means:
• Same pay and benefits;
• Substantially similar status, responsibility, skill
and authority;
• Same Shift;
• Reasonable commuting distance.
• Practical Pointer: Can an employee’s job
be filled while on FMLA? Yes, but the
employee must still be reinstated to an
equivalent position.
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FMLA: REINSTATEMENT
• Are there any exceptions to
reinstatement?
• If the employee would have been laid
off/terminated if actively employed, the
employee has no reinstatement rights.
• If the employee is unable to perform essential
job function – but within ADA requirements.
• If the employee fails to provide fitness for duty
certification.
• Key Employees: Among highest paid 10% of all
employees. Not entitled to reinstatement if it
would cause “substantial and grievous
economic injury.”
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FMLA: REINSTATEMENT
• Note that if an employee returns to
work in a light duty position, that is
not counted as FMLA leave. At the
end of light duty, the employee is
entitled to restoration in the same or
equivalent position he left before he
took light duty position.
• Right to restoration ends at the end
of the applicable 12 month leave
year.
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QUESTIONS?
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