Untangling the FMLA Web

By Renee Hotte

The Family and Medical Leave Act (FMLA) is almost ten years old and litigation under the Act is increasing dramatically. This law applies to all employers with fifty or more employees in twenty or more workweeks in the current or preceding calendar year. Eligible employees are provided up to twelve weeks of unpaid, job-protected leave in a twelve-month period for specified family and medical reasons.

To calculate the twelve-month period you can use a calendar year or fiscal year, or it can be based on each employee’s anniversary date of hire. The best way to administer FMLA leave is to use the rolling twelve-month calendar method; simply look back at the twelve-month period preceding the leave. Whichever method you chose it must be applied consistently to all employees.

Employees can take a leave for:

  • The birth of their child, whether they are the mother or father.
  • The placement of a child with the employee for adoption or foster care.
  • To care for a spouse, child, or parent who has a serious health condition.
  • To care for the employee’s own serious health condition.

To be eligible, an employee must have been employed twelve months, must have worked 1,250 hours before the leave, and must work at a site where there are fifty or more employees within seventy-five miles of that site.

Employers should require employees to provide medical certification that a serious health condition exits. Employers must notify their employees about the medical certification requirement with a letter stating the consequences of noncompliance. After the request for FMLA is received the employer must notify the employee within two business days of whether the leave counts against the twelve-weeks and whether the employer intends for any accrued paid time to run concurrently with the FMLA leave. If the employer fails to notify the employee with the proper required notification, the absence will not count against the employee’s twelve-week entitlement. Then the employee must be given at least fifteen days to provide the employer with the medical certification. Initiating the process, by way of giving the employee written notice, starts the clock running; you should do so at every opportunity. Workers’ compensation and short term disability, for example, are almost always FMLA-qualifying and the employee should be notified as such.

Employees seeking to use FMLA leave are required to provide a thirty-day advance notice of the need to take a FMLA leave when the need is foreseeable and such notice is practicable. If the need for leave is foreseeable, such as childbirth or a scheduled surgery, the employee must schedule treatment in the least disruptive manner to the employer. If the leave is unforeseeable, the employee must notify the employer as soon as practicable, usually within two business days.

Employees are not required to use the term “FMLA” or “family leave” when making a leave request. Once your supervisors or managers know the reason for the leave, it is up to the employer to determine whether the leave is a qualifying event or not.

When returning from an FMLA leave, the employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. In addition, the employee’s use of FMLA leave cannot result in loss of any employment benefits that the employee earned or was entitled to use before taking an FMLA leave, nor be counted against the employee under a “no fault” attendance policy.

All employees retain any benefits accrued before the leave. Employees keep health coverage during the leave if they continue to pay their share of premiums. Employees who let their health coverage lapse during leave must be reinstated when they come back to work. If the employee does not return to work at the end of the leave, the employer is entitled to recover all costs incurred in providing these benefits as long as the employees are aware of this consequence at the beginning of their leave.

Posting requirements under the FMLA require every employer subject to the act to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the act’s provisions and providing information concerning the procedures for filing complaints of violations of the act with the department of labor.

Record-keeping requirements with this act rest with the employer. They must maintain FMLA leave records for three years. However, FMLA does not require employers to submit records to the Department of Labor unless specifically requested. The employer must maintain medical records and documents for employees and their family members in separate files and treat them confidentially.

Because of the complexity of the act and the ever-changing court decisions, it is recommended that you periodically review your FMLA policy to ensure you are in compliance with the law and effectively meet your organizational business needs.

This column is for general information only. It is not intended to be legal advice and should not be relied upon as legal advice.

What does fifty employees in twenty workweeks really mean?

According to the Act, an employer meets the fifty-employee coverage test if it employs fifty or more employees for each working day of twenty or more calendar workweeks during the current or preceding calendar year.

What does this really mean? Most importantly, the twenty workweeks are measured based on the entire calendar year and do not have to be consecutive. Included in the test is any full-time or part-time employees (including those not eligible for FMLA) whose name appears on the payroll; each must be counted as employed for each working day of the week even if the employee did not receive any compensation for the week. An employee does not need to work on each working day of the week to be counted.

If the workforce of a covered employer drops below fifty employees, the employer continues to be subject to the FMLA regulations until it fails to meet the requirements of the fifty-employee coverage test for both the preceding and current calendar years.

Renee Hotte was the FMLA Manager of BASIC. For more information about BASIC products and services, call 800-444-1922.

[From Connection MagazineMarch 2002]

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