Labor and Employment Law blog

Guidelines to Follow When Determining Family Medical Leave Eligibility for Your Employees

Are all employees eligible for family medical leave benefits? If you, as an employer, are unclear regarding eligibility standards, the following guidelines will be helpful.

1. The Family Medical Leave Act (FMLA) requires that an employee work for a covered employer and be employed by that employer for at least 12 months.
2. The employee must have worked at least 1,250 hours in the 12-month period immediately preceding any taking of leave.
3. The employee must be engaged at a worksite where 50 or more employees are employed by that employer within 75 miles of that worksite.

The law is clear that the 12 months needed for coverage need not be consecutive. In order to establish whether the 1,250 hours have been worked, the principles of the Fair Labor Standards Act (FLSA) are used. The employer has the burden of proving that the worker has not worked the requisite hours. However, in the case of full-time teachers, regardless of the teaching level, they are deemed to have met the 1,250-hour test.

The critical date for the application of these tests is as of the date of commencement of leave. An employer wo receives a "need for FMLA leave" request must act within two business days or the employee will be deemed eligible. Once eligible, the employee's eligibility is not affected by any subsequent change in the number of employees employed.

Finally, the 75-mile rule is measured by surface miles and the shortest route using transportation over public streets, highways, waterways, and the like.

In a future post, we'll discuss how you can determine how much leave an employee is entitled to.

Five Questions Employers Commonly Ask Regarding FMLA

The Family Medical Leave Act is considered by a great many employers and HR professionals as one of the most complicated and confusing employment laws they have to deal with. Here are five questions commonly asked by employers regarding the interpretation of this important Act.

Q: What happens to employees' FMLA eligibility if the number of employees drops below 50?

A: Once an employee is determined eligible in response to notice of the need for leave, his or her eligibility is not affected by any subsequent change in the number of employees employed at or within 75 miles of the employer's worksite. Similarly, an employer may not terminate employee leave that has already started if the employee count drops below 50.

Q: Is an employee entitled to benefits while using FMLA leave?

A: During any FMLA leave, an employer must maintain the employee's coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. Therefore, any share of group health premiums which had been paid by the employee prior to FMLA must continue to be paid by the employee during the FMLS leave period.

Q: Can an employer recover its share of health plan premiums paid during leave if the employee fails to return to work after taking FMLA leave?

A: In most circumstances, an employer may recover its share of health plan premiums during a period of unpaid FMLS leave from an employee if the employee fails to return to work after the employee's FMLA leave entitlement has been exhausted or expires.

Q: Are there any limitations on an employer's obligation to reinstate an employee who has taken FMLA leave?

A: An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.

Q: Does an employer have continuing FMLA leave obligations should the employee be laid off during the leave period?

A: If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer's responsibility to continue FMLA leave, maintain group health plan benefits, and restore the employee, cease at the time the employee is laid off.

For more information regarding FMLA leave, you may want to reference What Every Business Manager and HR Professional Should Know About Federal Labor and Employment Laws. This guidebook devotes a complete chapter to the Family Medical Leave Act and includes over 40 frequently asked questions that relate to the FMLA.

Seven FMLA Recordkeeping Requirements Employers Should Be Aware Of

The Family Medical Leave Act (FMLA) provides that employers shall preserve records in accordance with the recordkeeping requirements of the Fair Labor Standards Act (FLSA) and FMLA regulations. The FMLA also authorizes the Department of Labor (DOL) to require any employer to submit books or records not more than once during any 12-month period unless the Department has reasonable cause to believe a violation exists or a complaint is currently being investigated.

No particular order or form of records is required. However, employers must keep the records specified by these regulations for no less than three years and make them available for inspection by representatives of the DOL upon request.

In particular, these records must disclose the following:

1. Basic payroll and identifying employee data, including name, address, occupation, rate or basis of pay, terms of compensation, daily or weekly hours worked per pay period, additions to or deductions from wages, and total compensation paid.
2. Dates FMLA leave is taken by FMLA-eligible employees.
3. If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
4. Copies of employee notices of leave furnished to the employer under FMLA if in writing, and copies of all general and specific written notices given to employees as required under the FMLA.
5. Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
6. Prepayments of employee benefits.
7. Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

In addition, records and documents relating to medical certifications, recertifications, or medical histories of employees or employees' family members, created for purposes of the FMLA, shall be maintained as confidential medical records in separate files from the usual personnel files, and if the Americans with Disabilities Act (ADA) is also applicable, such records shall be maintained in conformance with ADA and the Health Insurance Portability and Accountability Act (HIPAA) requirements.

Informing Employees Of Their FMLA Rights And Obligations - Part 2

Last August, we wrote an article about rules about informing employees of their FMLA rights. If an employer has no employee handbook describing the benefits and leave provisions , then the employer must provide each employee with written guidance concerning his or her rights under the FMLA.

The employer must also provide each employee with a written notice detailing specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. Such specific notice must include, as appropriate:

• that the leave will be counted against the employee's annual FMLA leave entitlement,
• any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so,
• the employee's right to substitute paid leave and whether the employer will require the substitution of paid leave, and the conditions related to any substitutions,
• any requirement for the employee to make any premium payments to maintain health benefits and the possible consequences of failure to make such payments on a timely basis,
• any requirement for the employee to present a fitness-for-duty certificate to be restored to employment,
• the employee's right to restoration to the same or an equivalent job upon return form leave, and
• the employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave, if the employee fails to return to work after taking the leave.

The written notice must be provided to the employee no less often than the first time in each six-month period that an employee gives notice for the need of FMLA leave (if FMLA leave is taken during the six-month period - usually within one or two business days after receiving the notice of need. If leave has already begun, the employer should mail the notice to the employee's address of record.

To learn more about the Family and Medical Leave Act, you might like to read the following articles (with links) that have appeared in this blog.

Family Medical Leave - Take The Quiz

FMLA - The Most Complicated Employment Law Of Them All

FMLA - Ten Questions You Should Know The Answers To

FMLA Leave - Is It Paid Or Unpaid? It Depends.

Employee Rights Upon Returning To Work From FMLA Leave

FMLA - Defining A "Serious Health Condition"

FMLA - Defining A "Serious Health Condition"

One of the four circumstances under which an employer is required to grant family or medical leave is a "serious health condition" - that is, a health condition that makes the employee unable to perform the functions of his or her job. Such a condition can be further defined as an illness, injury, impairment, or physical or mental condition that involves either inpatient care (i.e. an overnight stay) in a medical care facility or continuing treatment of the serious health condition by a health care provider.

Continuing treatment by a health care provider can include any one or more of the following five situations:

1. A period of incapacity for more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition that involves (a) two or more treatments by a health care provider, or (b) one treatment by a health care provider with a continuing regimen of treatments under the supervision of that provider.
2. Any period of incapacity due to pregnancy or for prenatal care.
3. A period of incapacity on account of a chronic serious health condition that (a) requires periodic visits for treatment by a health care provider, (b) continues over an extended period of time, or (c) may cause episodic rather than a continuing period of incapacity (i.e. asthma, diabetes, epilepsy, etc.).
4. A period of incapacity that is permanent or long term due to a condition for which treatment may not be effective (i.e. Alzheimer's, a severe stroke, or the terminal stages of a disease).
5. Any period of absense to receive multiple treatments including restorative surgery that is likely to result in a period of incapacity of more than three consecutive calendar days (i.e. chemotherapy, radiation, etc.).

In doing an Internet search, we found a great website that gives numerous examples of serious health conditions. Check out the St Louis County (Missouri) website. It has a lot of useful information.

During our research, we also discovered Carl Bosland's FMLA blog. Carl's articles cover a variety of sub-topics, all under the FMLA umbrella. You'll find his link, "FMLA Blog", has been added to our "Blogs & Sites to Watch."

Employee Rights Upon Returning To Work From FMLA Leave

What rights do employees have and what is required from the employer when employees return to work after taking a family and medical leave?

On return from FMLA leave, an employee is entitled to be reinstated to the same position he or she held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or the position has been restructured to accommodate the employee's absence.

What if the employee is unable to perform some of the job functions?

If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under FMLA. However, the employer's obligations may be governed by the Americans with Disabilities Act (ADA).

What is an "equivalent position"?

An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits, and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, that must entail substantially equivalent skill, effort, responsibiility, and authority.

With respect to pension and other retirement plans, any period of unpaid FMLA leave shall not be treated as, or counted toward, a break in service for purposes of vesting and eligibility to participate.

For additional information about FMLA, you might like to read the following articles:

Rules about informing employees of their FMLA rights.

FMLA Leave - Is it paid or unpaid?

FMLA - Ten questions you should know the answers to.

Rules About Informing Employees of Their FMLA Rights

Here are some rules or guidelindes about informing employees of their FMLA rights that employers need to be aware of.

Posting Requirements: Every employer covered by the Family and Medical Leave Act (FMLA) is required to post and keep posted on its premises a notice explaining the Act's provision and providing information concerning the procedures for filing complaints of violations of the Act with the Wage and Hour Division. The notice should be posted in a conspicuous  place where the employees are employed, whether or not the employer has any "eligible" employees.

Where an employer's workforce is composed of a significant portion of workers who are not literate in English, the employer shall be responsible for providing a notice in a language in which the employees are literate.

Employee Handbook: If an employer provides an employee handbook to all employees that describes the employer's policies regarding leave, wages, attendance, and similar matters, the handbook must incorporate information on FMLA rights and responsibilities, and the employer's policies regarding FMLA.

No Employee Handbook: If an employer does not have a handbook describing employee benefits and leave provisions, the employer shall provide written guidance to an employee concerning all the employee's rights and obligations under the FMLA. This notice shall be provided to employees each time a request is made for FMLA leave.

The employer shall also provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. The notice must be in a language in which the employee is literate.

For more information regarding FMLA notices and employer-employee obligations, the employment law guidebook promoted on this blog provides some extremely good guidelines.

FMLA Leave - Is It Paid Or Unpaid? It Depends.

If you receive a request from an employee to substitute some accrued paid leave time for FMLA leave, would you know how to respond? If not, the following information may be helpful.

As a general proposition to the Family Medical Leave Act, FMLA leave is unpaid. However, paid vacation or personal leave, including leave earned or accrued under plans allowing "paid time off", may be substituted. This substitution can be made either at the employee's or the employer's option, for any qualified FMLA leave. If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave, the employee will remain entitled to all the paid leave which is earned or accrued under the terms of the employer's plan.

Substitutions of paid sick or medical leave may be elected to the extent the circumstances meet the employer's usual requirements for the use of such leave.

An employer is not required to allow substitutuion of paid sick or medical leave for unpaid FMLA leave "in any situation" where the employer's uniform policy would not normally allow such paid leave. An employer, therefore, has a right to substitute paid sick or medical leave to care for a seriously ill family member only if the employer's leave plan allows paid leave to be used for that purpose.  Similarly, an employee does not have a right to substitute paid sick or medical leave for a serious health condition which is not covered by the employer's leave plan.

If, when reviewing your FMLA leave program, you find the issues regarding paid or unpaid leave options to be unclear, the above guidelines may be helpful in revising the content of your program. There is also a good article written by Wage Law, a California wage and hour law blog that presents a situation where the employer was not allowed to force an employee to exhaust paid time off before using unpaid FMLA leave.

In the final analysis, make sure that your policy is up-to-date and understandable and be aware of all issues when considering paid versus unpaid leave.

FMLA - Ten Questions You Should Know The Answers To

The Family and Medical Leave Act (FMLA) requires covered employers to allow eligible employees unpaid leave for medical reasons, for the birth or adoption of a child, or for the care of a child, spouse or parent who has a serious health condition. As an employer, here are ten key questions that you should know the answers to.

1. How much leave is an employee entitled to under FMLA? If the employee is "eligible", they are entitled to 12 weeks of leave during a 12-month period.
2. How is the 12-month period calculated? Employers may select one of four options for determining the 12-month period. They may use either the calendar year, any fixed 12-month period such as a fiscal year, the 12-month period measured forward from the date the employee's first FMLA leave begins, or a "rolling" 12-month period measured backward from the date an employee uses FMLA leave.
3. Does the law guarantee paid time off? No. The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid leave for some or all of the FMLA leave period.
4. Which employees are eligible to take FMLA leave? Employee are eligible to take FMLA leave if they have worked for their employer for at least 12 months, have worked for at least 1,250 hours over the previous 12 months and have worked at a location where at least 50 employees are employed by the employer within 75 miles.
5. Do the 12 months of service with the employer have to be continuous or consecutive? No. All time worked for the employer is counted.
6. Do the 1,250 hours include paid leave time or other absences from work? No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.
7. Does an employer have to pay bonuses to an employee who has been on FMLA leave? The FMLA requires that employees be restored to the same or an equivalent position. If an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work.
8. Can an employee continue to accrue benefits and seniority while on FMLA leave? Not necessarily. The FMLA does not require employers to offer such allowances.
9. If a holiday occurs during an FMLA leave week resulting in the employer being closed, does this still constitute a week? Yes. The fact that a holiday may occur within the week has no effect. The week is counted as a week of FMLA leave.
10. Under what circumstances may an employer require that an employee submit a medical certification? As a condition of restoring an employee whose FMLA leave was occasioned by the employee's own serious health condition that made the employee unable to perform, an employer may require such certification, if the employer has a uniformly applied policy or practice for all employees.

If you are a small business, the National Federation of Independent Businesses offers some good guidance on FMLA that business owners should be aware of.  If an employer has an employee who is returning from active military duty, the Department of Labor offers some specific guidelines. And finally, the EEOC has put together a question and answer fact sheet regarding the relationship among FMLA, the Americans with Disability Act and Title VII.

Each of these articles are worth reviewing.

FMLA - The Most Complicated Employment Law Of Them All

In 1993, Congress passed the Family And Medical Leave Act (FMLA) that requires covered employers to allow eligible employees up to 12 weeks of unpaid leave during any 12-month period for certain medical situations.

The FMLA covers private employers with 50 or more employees (including part-timers) for each working day during each of 20 or more calendar work weeks in either the current or the preceding year. In the case of a public agency, or public or private elementary and secondary schools, coverage occurs without regard to the threshold that 50 employee are carried on the payroll each day for the 20 or more weeks in a year. However, the requirement that there be 50 employees at a worksite or within 75 miles pertains.

Covered employers must grant requests for leave in the following situations:

• For the birth and care of a newborn child.
• For the placement of a child for adoption or foster care.
• For the care of the employee's spouse, child or parent with a serious health condition.
• For a serious health condition that makes the employee unable to perform the functions of the employee's job.

The law applies equally to male and female employees.

The enactment was predicated on the demands of the workplace and the needs of families and is intended to benefit both employers and employees - the rationale being that a direct correlation exists between stability in the family and productivity in the workplace.

Over the years, survey after survey that has been conducted with HR professionals have confirmed that, by far, FMLA is the most complicated and confusing employment law to understand and conform to. Questions involving issues such as the definition of a serious health condition, how to determine how much leave an employee is entitled to, intermittent leave, what is paid or unpaid, requirements of employee's notice, medical certification, employee's rights to return to work and recordkeeping requirements all present " areas of gray" and are prone to inconsistent interpretations.

There is a slim possibility that some of the ambiquities of FMLA may be addressed. The HR Cafe noted earlier this year that the Department of Labor (DOL) plans to take a look at clarifying (do you think this might be an attempt to streamline?) areas such as the serious health condition, intermittent leave and medical certification sections of the law. We suggest that you take a look at their article. You also may want to read Diane Stafford's post as well. Perhaps there is hope.

Although the measures the DOL are taking are steps in the right direction, no time table has been identified as to when and if any changes may be forthcoming. Plus, Congress will probably want to add their seven cents worth "on our behalf."

Stay tuned!