FAMILY & MEDICAL LEAVE ACT (FMLA)
• FMLA was created to allow employees to take time off from work to
take care of personal or family medical problems without the threat
of punishment or retaliation from their employers.
• All public employers are subject to FMLA.
• All private employers who hire 50 or more people for at least 20
weeks in the current or previous calendar years are also subject to
FMLA.
• Workers who are full-time, part-time, temporary, on layoff status who
are subject to recall, and employees on leave who will later return to
work are all counted when counting the 50 workers required to
trigger FMLA.
FAMILY & MEDICAL LEAVE ACT (FMLA)
• Independent Contractors are not considered employees under
FMLA.
• A temporary staffing agency and an employer are considered joint
employers for purposes of determining employer coverage and
employee eligibility under FMLA.
• Workers who are stationed outside the U.S., its territories, or
possessions are not counted when counting the 50 workers required
to trigger FMLA.
FAMILY & MEDICAL LEAVE ACT (FMLA)
REQUIREMENTS FOR FMLA ELIGIBILITY:
1.
The employee must be employed by a covered employer in the
U.S. or one of its territories or possessions;
2.
The employee must work at a jobsite where the employer
employs 50 or more employees at or within 75 miles of the
jobsite;
3.
The employee must have worked for the employer for at least 1
year (does not have to be 1 consecutive year); and
4.
The employee must have worked at least 1,250 hours for the
employer during the 12-month period immediately preceding the
date leave will begin.
FAMILY & MEDICAL LEAVE ACT (FMLA)
An employee can take up to 12 workweeks of job-protected leave
in a 12-month period in the following instances:
1.
The birth of a child (and to care for the newborn);
2.
The placement of a child with the employee for adoption or foster
care purposes;
3.
To care for an immediate family member (spouse, parent, or child)
who has a serious health condition; or
4.
The employee has a serious health condition that prevents the
employee from performing functions of his or her position.
FAMILY & MEDICAL LEAVE ACT (FMLA)
•
Under FMLA the employee is entitled to 12 work weeks of job-protected
unpaid leave per year for a qualifying reason (see previous slide).
•
An eligible employee may however choose to substitute available paid
company leave for unpaid FMLA leave. (EX: The employee chooses to
substitute paid sick leave, family or personal leave, or accrued vacation
days).
•
All leave taken for an FMLA-qualifying reason, paid or unpaid, will
count against the employee’s allotted 12 weeks of FMLA leave.
•
If a serious health condition results from an on-the-job injury (workers’
compensation injury), the employee or employer can choose whether
the FMLA leave will run concurrently with the employee’s absence due
to the on-the-job injury.
FAMILY & MEDICAL LEAVE ACT (FMLA)
•
If an employee chooses to substitute paid leave for unpaid leave,
this must be done in writing!
•
The employer should make a good faith effort to give a
preliminary designation within 2 business days after the employer
learns of the possible FMLA-qualifying reason for the absence.
An employer can retroactively designate an absence as FMLA if:
1.
The employer does not know the reason for the absence at the
time it occurs, and the employer makes the designation within 2
business days after the employee returns from the absence; or
2.
The employer preliminarily designates the absence as FMLA
leave and is awaiting a medical certification.
FAMILY & MEDICAL LEAVE ACT (FMLA)
Intermittent FMLA Leave
This leave is taken in blocks of time due to a single qualifying reason.
Reduced Leave
This leave reduces an employee’s usual number of working hours per
Workweek or per workday.
• Leave for the birth of a child or for the placement of a child for
adoption or foster care purposes can only be taken intermittently or
by reduced leave.
• Leave may also be taken intermittently or by reduced leave for
planned or unanticipated medical treatment or for a serious health
condition.
FAMILY & MEDICAL LEAVE ACT (FMLA)
CASE DISCUSSION:
Brown v. J.C. Penney Corp, 924 F. Supp. 1158 (1996).
• An employee requested a twelve-week leave to care for his
terminally ill father. Seven weeks into the leave, the employer
replaced the employee. One week later, the employee’s father died
but he did not tell his employer about his father’s death, and he did
not return to work until the expiration of the full twelve weeks. When
he returned to work, he was told that he had been replaced as the
customer service supervisor. He was told that there was a sales
associate position for him at his former supervisory position's rate of
pay. The plaintiff refused the alternate job and was terminated.
• RULE: Even if an employee was on FMLA leave to care for a family
member’s serious health condition when the family member dies, an
absence from work to handle the funeral arrangements of that
deceased family member does not qualify for FMLA leave.
FAMILY & MEDICAL LEAVE ACT (FMLA)
•
A serious health condition means those conditions that require
absences beyond those usually provided for by an employer’s sick
leave policy such as (this list is not all-inclusive):
heart attacks
heart conditions requiring heart bypass or valve operations
most types of cancer
severe back conditions (extensive therapy/surgery needed)
strokes
spinal injuries
appendicitis
pneumonia
emphysema
severe arthritis
severe nervous disorders
pregnancy related conditions, including morning sickness &
miscarriages
FAMILY & MEDICAL LEAVE ACT (FMLA)
EMPLOYEE PROTECTIONS UNDER FMLA
• An employee returning from FMLA has the right to return to the
same position, or to an equivalent position with equivalent benefits,
pay, and other terms and conditions of employment.
LIMITATIONS TO THE EMPLOYER’S FMLA OBLIGATION
• If the employer would have terminated the employee—even if the
employee had not taken FMLA—the employer can refuse to
reinstate the employee to the same or equivalent position.
– “Key employee”- a salaried FMLA-eligible employee who is among the
highest paid 10% of all the employees within 75 miles of the employee’s
work site at the time the employee gives notice of the need for leave.
– If reinstating a “key employee” would cause a substantial and
grievous economic injury to the company, the employer does not
have to reinstate a “key employee” upon his or her FMLA leave return.
FAMILY & MEDICAL LEAVE ACT (FMLA)
After an employer makes a good faith determination that it will suffer a
grievous and substantial economic injury if a “key employee” is
reinstated, the employer must give written notice in person or by
certified mail stating:
1.
2.
3.
The employer cannot deny FMLA leave to the employee;
The employer intends to deny employment to the employee upon
completion of the FMLA leave; and
An explanation of the employer’s reasons for finding that
substantial and grievous economic injury will result if the
employee is restored.
FAMILY & MEDICAL LEAVE ACT (FMLA)
• If an employer is not able to immediately determine if it will suffer
harm from the absence of a key employee, the employer must
provide written notice to the employee when the employee notifies
the employer of his or her intention to take FMLA leave. The notice
must state:
1.
2.
that the employer believes it may be entitled to deny
reinstatement to the employee; and
an explanation of the potential consequences with
respect to reinstatement and the maintenance of health
benefits if the employer determines that it will suffer
substantial and grievous economic consequences.
FAMILY & MEDICAL LEAVE ACT (FMLA)
Benefit Protection
• The FMLA requires that an employer maintain the employee’s
coverage under any group health plan as if the employee had been
continuously employed during the entire leave period.
• FMLA leave must not be treated as a break in service for purposes
of vesting and eligibility to participate.
EMPLOYEE’S OBLIGATIONS
• An employee must give 30 days notice of the desire to take FMLA
leave.
• An employer can require that the employee bring a medical
certification when FMLA leave is requested.
FAMILY & MEDICAL LEAVE ACT (FMLA)
An employer can only request certification regarding:
1.
2.
3.
4.
5.
The facts surrounding the “serious medical condition.”
The date the serious health condition began its probable
duration, and whether it will be necessary for the employee to
take an intermittent or reduced leave;
Additional treatments that may be required for the medical
condition;
Employee’s ability to work; and
Absence to care for family members
FAMILY & MEDICAL LEAVE ACT (FMLA)
EMPLOYER’S OBLIGATIONS
• The employer must notify the employees of their rights under FMLA
by 1) posting approved FMLA notices; and 2) providing the FMLA
policy in an employee handbook; or provide other written guidance
outlining FMLA rights and employee obligations.
• The employer must provide the employee with written notice that
includes details of the specific obligations of the employee when
requesting FMLA leave, and the consequences for failing to meet
the obligations.
• An employer shall not interfere with an employee’s rights under
FMLA.
FAMILY & MEDICAL LEAVE ACT (FMLA)
CASE DISCUSSION:
Beno v. United Tele Co. of Florida, 969 F. Supp. 723 (1997)
The employer discharged the former employee for seeking reimbursement for
expenses of another person's meals while on a business trip. The court noted
that before the former employee requested medical leave, her supervisors had
already discovered and reported the expense irregularity, conducted an
investigation, and recommended her termination. Steps toward the employee’s
termination were already underway before she requested medical leave.
RULE:
To maintain a prima facie case for a FMLA violation, a plaintiff must
demonstrate that:
(1) she is protected under the FMLA
(2) she suffered an adverse employment decision, and
(3) either she was treated less favorably than an employee who had not
requested FMLA leave or the adverse decision was made because of the
plaintiff's request to leave.