Posted on Jul 25, 2017

The Family and Medical Leave Act (FMLA) is often tweaked, adjusted or reinterpreted as cases of alleged abuse continue to pop up and courts are asked to weigh in. With so much change, it’s a good idea to check your policies regularly. Is your company in compliance?

Here’s a very streamlined recap of the top 10 FMLA fundamentals to refresh your memory. (Keep in mind that your state and local laws may have stricter requirements.)

1. Allowable purposes for unpaid leave up to 12 weeks: Attending to the birth or adoption of a child, caring for a family member with a serious health condition, or suffering a health condition that prevents one from performing essential  job tasks. (Special rules apply where family members are on active duty in the military.)

2. To be eligible, employees must: Have logged at least 1,250 hours of service during the period before the leave, and have worked for the employer for one year over a period no greater than seven years (that is, employment gaps are permissible).

3. Private sector employers are exempt from the FMLA if: They have fewer than 50 employees overall or at a specific site that’s at least 75 miles away from any of its other employment sites.

4. When taken, the FMLA leave period: Doesn’t have to be a single block of time consisting of consecutive days; intermittent leave may be possible, as well as working on a reduced schedule basis. When leave is intermittent in a nonemergency situation, employees should make a “reasonable effort” to accommodate the operational scheduling needs of the employer.

5. Maintenance of benefits: Employees out on FMLA leave must stay on the employer’s health plan under the same terms (including cost-sharing provisions) as before.

6. Coordination with paid leave benefits: Often it’s possible for employers to require employees taking FMLA leave to use up accrued paid leave time concurrently.

7. When requesting an FMLA-mandated leave, employees must: Give employers a 30-day notice, if the need for the leave was foreseeable, or otherwise as soon as possible. When making an FMLA leave request for the first time, employees don’t need to state that the request is being made under the FMLA. They merely need to provide employers enough information about the purpose of the leave for the employer to independently determine that the leave is sanctioned by the law.

8. Notification requirements: Employers must maintain posted notices about the FMLA; include information about it in their employee handbooks; and, upon request, provide information about employees’ rights and responsibilities under the law.

9. Medical certification: When a leave request is based on a serious medical condition of the employee or the employee’s family member, the employer can request documentation from a health care provider, as well as seek second and third opinions.

10. Job restoration: When employees return from their leave periods, they must be given their original jobs or another position with equivalent pay, benefits, and other employment terms and conditions.

Legal Authority

In an FMLA case, only a U.S. Supreme Court decision can affect the law nationwide. Still, a lower court ruling — even if it occurs in a jurisdiction other than your own — might be influential where you’re located. Below are three noteworthy cases that highlight the need to keep abreast of FMLA legal developments:

Case 1. The court upheld an employer’s decision to terminate an employee while she was on FMLA leave, against the employee’s claim that her termination violated her FMLA rights and was discriminatory. The court accepted the employer’s explanation that it had a sound business rationale to eliminate the employee’s position: The company was shrinking; other employees could assume her duties, and it would have made the same decision if the employee weren’t on leave.

Case 2. The court agreed with an employee’s argument that she was being prevented from gaining the full benefit of her FMLA leave because of her employer’s pattern of making substantial requests of her time while on leave. The court held that it was permissible for the employer to contact employees on leave for certain tasks. Examples include:

  • Passing along relevant institutional knowledge to new staff,
  • Providing computer passwords,
  • Giving closure on complicated assignments, and
  • Identifying other employees who could fill the void created by her absence.

But it was inappropriate for the employer to contact the employee regularly with questions about her work duties and absences, inputting data, and taking time out to receive training before returning to work. The fact that the employee was terminated shortly after her return to work buttressed her argument that her employer was trying to interfere with her rights.

Case 3. The Ninth Circuit Court of Appeals upheld a lower court ruling in favor of an employer that terminated an employee who claimed her FMLA leave benefits were denied. The employee had requested, and received, a period of leave to care for her sick father. But she’d requested that it not be treated as FMLA leave, but instead as ordinary paid leave. The company agreed.

However, the employee didn’t return to work until two weeks after the date she’d promised to come back and was terminated. She argued that the extra two weeks should have been treated as protected FMLA leave, because her reason for remaining away from work was to care for an ailing family member. The courts drew two conclusions: 1) It’s possible for an employee to seek and receive non-FMLA leave for an FMLA-eligible purpose, and 2) Unauthorized leave cannot automatically become protected FMLA leave without the employee explicitly requesting it on that basis.

Regular Tune-Ups Advised

New FMLA cases are decided all the time, creating a demand for attorneys who specialize in this corner of the law. Therefore, given the fluidity of FMLA legal interpretation, it’s prudent to periodically review your compliance with the evolving legal standards.

Posted on Jun 20, 2016

FMLA Fraud, FMLA Abuse

The Family and Medical Leave Act (FMLA) protects jobs when employees need extended time off because of their own or a family member’s health problems.

Who Qualifies for FMLA Leave

Employees are eligible for FMLA leave if they worked for a covered employer for at least 12 months and at least 1,250 hours during that time. The months do not have to be consecutive, but work periods before a break in service of seven years or longer don’t have to be counted unless:

1. The break is to fulfill a National Guard or Reserve military obligation, or

2. There is a written agreement stating the employer’s intention to rehire the employee after the break.

There are restrictions on family leave when spouses work for the same employer. Leave is limited to a combined total of 12 weeks for the birth and care of a newborn child, placement of a child for adoption or foster care, or to care for a parent. Leave for a birth or placement must end within 12 months.

To help prevent such abuses, the law allows you, as an employer, to insist that employees supply medical certifications verifying the seriousness of their conditions. The Labor Department regulates both the process you must follow and the information you can request when asking for certification.The law allows employees as many as 12 weeks of unpaid medical leave in any 12-month period to take care of qualifying medical conditions. While in most instances these leaves are legitimate, there are employees who try to take advantage of the system.

Generally speaking, a health care provider must attest that the employee or a qualifying family member has an illness, injury, impairment or physical or mental condition that involves one of these two conditions:

A period of incapacity or treatment that requires overnight stays in a hospital or residential medical care facility, or

Continuing treatment that causes incapacity, such as:

  1. A treatment and recovery lasting more than three consecutive days. There must either be two or more treatments or one treatment followed by a regimen such as prescription medications or physical therapy.When there is more than one treatment, the first must occur within seven days of the day the employee becomes incapacitated. When there are two treatments, both must occur within 30 days of the incapacitation.
  2. Pregnancy or prenatal care (a visit to a health care provider is not necessary for each absence).
  3. A chronic health condition that continues over an extended period and requires at least two visits a year to a health care provider. This may include such episodic conditions as asthma or epilepsy and does not require a visit to a health care provider for each absence.
  4. Permanent or long-term conditions for which treatment may not work and that require supervision by a healthcare professional. This includes such conditions as terminal cancer, Alzheimer’s disease or a stroke.
  5. Restorative surgery after an accident or injury, or conditions that would likely result in incapacitation for more than three days if not treated, such as radiation or chemotherapy for cancer or dialysis for kidney disease.

The Certification Process

If you require certification, employees must provide it within 15 days. As an employer, you must:

  • Use either the Labor Department’s WH 380 Certification of Health Care Provider forms or devise your own. If you use your own, you cannot ask for more information than the government forms require.
  • Ask for certification within five business days after the leave request or after the start of the leave if it was unforeseen.
  • Tell employees that you can deny FMLA leave if the certification is incomplete, insufficient or unclear.
  • Give employees a written notice of the problems with the certification and allow seven calendar days to fix them.

In some cases, the employee’s medical condition may be considered a disability under the Americans with Disabilities Act (ADA). In such situations, information obtained through ADA procedures may be used in the FMLA leave determination.

You can directly contact the employee’s medical provider for clarification through a health care provider, human resources professional, leave administrator or management official. The employee’s direct supervisor, however, cannot contact the provider for clarification.

You may require annual certifications if an employee’s need for FMLA leave lasts longer than a year. And you may ask for certification at a later date if you doubt the appropriateness or duration of the leave.

FMLA leave is an entitlement, but it can be abused. Talk to a professional about these and other procedures that can help prevent misuse of the law and cut the unnecessary costs and workplace disruptions that can stem from illegal, lengthy absences.