FAQs ABOUT THE FAMILY AND MEDICAL LEAVE ACT (FMLA)

by Employment Law Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
Norwood Corporate Center
1500 Providence Highway, Suite 33
Norwood, MA 02062
(781) 551-0800
Llockard@leslielockard.com
www.leslielockard.com

WHO IS ENTITLED TO FMLA LEAVE?

The federal FMLA applies to most employers who employ 50 or more employees. To be eligible for an FMLA leave, an employee must have worked for the employer for at least a year, and must have worked at least 1,250 hours during the previous twelve month period. In addition, the employer must employ 50 or more people at the employee’s worksite, or within 75 miles of his worksite. Eligible employees are entitled to up to 12 weeks of unpaid leave during any 12 month period for one or more of the following reasons:

1. The employee (either male or female) requests leave to care for his/her child after birth, adoption or placement for foster care.

2. The employee requests leave to care for a spouse, child or parent who has a serious health condition.

3. The employee requests leave because of inability to perform his/her job as a result of the serious health condition.

If the need for a leave is foreseeable based on planned medical treatment or the expected arrival of a child, the employee is required to give at least 30 days’ notice before taking leave. There are detailed regulations which define what will be deemed a “serious health condition”. Generally, unless complications arise, colds, flu, earaches, upset stomachs, minor ulcers, headaches other than migraines, routine dental or orthodontia problems and periodontal disease do not constitute serious health conditions. The regulations provide that employees with serious health conditions which require periodic medical care, such as asthma, diabetes or epilepsy, can take intermittent leave in increments as short as an hour when their conditions render them unable to do their jobs, without any requirement that the employee receive treatment from a health care provider on each such occasion.

FMLA EMPLOYEE BENEFIT AND JOB RESTORATION RIGHTS Under most circumstances, the employer must maintain the same group health coverage for an employee during an FMLA leave that it would have provided had the employee not taken any leave. In most cases, the employer is also required to restore employees who take FMLA leave to their former positions, or to equivalent positions with equivalent employment benefits, pay and other terms and conditions of employment. Employees do not have a right to restoration, however, if they would have been laid off if they had not been on leave. Employers cannot penalize employees in any way for taking FMLA leave, or count FMLA leave against the employee in applying employee absence policies. In addition, if the employer awards perfect attendance bonuses, FMLA leave cannot be counted against employees for the purposes of determining whether their attendance was perfect.

FMLA EMPLOYEE NOTICE RIGHTS

In addition to including information about FMLA rights and responsibilities in employee handbooks, employers must give employees who request FMLA leave written information specifically describing the obligations the employee must meet during FMLA leave (such as any obligation to continue paying his portion of health care premiums) and explaining any consequences of failure to meet such obligations. This notice must be given within a reasonable time, within 1-2 business days if feasible.

FMLA LEAVE DESIGNATION RULES

Employers need to be sure that supervisors who take calls from employees who are reporting in sick or otherwise requesting time off from work, know the kinds of absences which may be covered by the FMLA. An employee does not need to specifically request FMLA leave, or mention the FMLA, to be entitled to FMLA leave. An employer cannot discipline an employee for taking leave for an FMLA related purpose, or deny leave requested for an FMLA purpose, even if the employee does not specifically ask for leave under the FMLA. In addition, once the employer learns that an employee is taking leave for an FMLA covered purpose, the employer must designate the leave as FMLA leave and inform the employee of the designation in writing. If the employer fails to designate leave as FMLA covered leave, the leave may not be counted against the employee’s 12 week annual entitlement. Employers ordinarily cannot retroactively designate FMLA leave if they later find out that leave was taken for an FMLA purpose. For example, if an employer realizes for the first time five weeks into a six week leave that the leave was taken for an FMLA purpose, the employer ordinarily cannot retroactively designate the first five weeks as FMLA leave, and will not be able to count it against the employee’s 12 week annual entitlement.

Employers generally are required to determine an employee’s eligibility for FMLA leave, within two business days of being notified of the need for leave. If the employee is not eligible for FMLA leave, and the employer fails to inform the employee of this within two business days, the employee will generally be deemed eligible.

CAN PAID LEAVE BE SUBSTITUTED FOR UNPAID FMLA LEAVE?

Employers generally have the right to require employees to substitute for unpaid leave, certain accrued kinds of leave (the types of leave employees may be required to use vary depending on the purpose for which FMLA leave is being requested). If the employer wishes to impose such a requirement, however, notice must usually be given to the employee within two days after the employee requests the leave.

HOW IS THE 12 WEEK FMLA PERIOD COMPUTED?

A business is well advised to announce in writing how it will compute an employee’s annual 12 week FMLA entitlement (e.g., fiscal year, calendar year, rolling 12 month period). If employers have not announced such a policy by the time an employee asks for leave, the employer must use the method which results in the employee obtaining the most amount of leave. Employers also must give 60 days’ notice before changing its method of computing the 12 month period, and cannot change the method for the purpose of denying a particular employee leave. The rolling 12 month period may be advisable because it would prevent an employee from taking 24 weeks leave at one time, doing 12 weeks at the end of one calendar year and beginning the next 12 weeks of leave with January 1st of the next calendar year.

CAN FITNESS FOR DUTY CERTIFICATES BE REQUIRED OF EMPLOYEES RETURNING FROM FMLA LEAVE?

The FMLA permits employers to require employees to provide a fitness for duty medical certificate before returning to work, as long as the employer has a uniformly applied policy requiring such a certificate which has been communicated to the employee before leave commences. (In order to comply with discrimination statutes, the required certificate should be “job related and consistent with business necessity”.) It is probably a good idea for employers to have such a policy, so that they are protected from having to reinstate an employee whom the employer suspects is not presently capable of doing the job.

WHAT MEDICAL CERTIFICATIONS ARE REQUIRED IN RELATION TO FMLA LEAVE?

Employers can require employees to have a medical certification form filled out to support their need for a leave (either on their own behalf or on behalf of their parent, spouse or child who has a serious health condition). If the employer decides to request such certification, the employer should request it at the time the employee gives notice of the leave, or within two business days thereafter. The employer must also advise the employee of the anticipated consequences of his failure to provide adequate certification.

FMLA LEAVE AND WORKER’S COMPENSATION RIGHTS

Worker’s compensation leave can count against an employee’s FMLA leave entitlement provided the reason for the worker’s compensation leave would qualify as a serious health condition and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave. Even if the employee’s physician certifies that the employee can perform light duty work, which may cut off worker’s compensation benefits, the employee does not have to return to work if he still has FMLA leave remaining. He can continue on FMLA leave as long as he cannot perform all the essential functions of his position.

NOTICES EMPLOYERS ARE REQUIRED TO GIVE UNDER THE FMLA

1. Employers are required to post, in a conspicuous place where it can be seen by employees and applicants for employment, a notice which explains the FMLA and informs employees how to file a complaint for a violation of the FMLA. If a significant number of its employees are not literate in English, the employer must post the notice in the language in which they are literate.

2. If an employer has any written guidance it gives to employees concerning employee benefits or leave rights, such as an employee handbook, information concerning FMLA entitlements and employee obligations under the FMLA must be included in it. If the employer does not have such a handbook or other written guidance, the employer is required to give written information to employees concerning their rights and obligations under the FMLA every time they give notice of the need for FMLA leave. The information must be provided within a reasonable time after notice of the need for leave is given by the employee – within one to two business days if feasible.

3. When employees give notice of the need for FMLA leave, employers are also required to provide a written notice explaining the employee’s obligations under the FMLA and the consequences of any failure to meet these obligations. Like the FMLA information mentioned above, this notice must be provided within a reasonable time, within one to two business days if feasible. The notice must be provided in the language in which the employee is literate. The regulations specify that these notices must state:

(a) that the leave will be counted against the employee’s annual FMLA leave entitlement;

(b) any requirements for the employee to furnish medical certification of a serious health condition, and the consequences for failing to do so;

(c) that the employee has the right to substitute paid leave;

(d) whether the employer will require the substitution of paid leave, and the conditions related to any substitution;

(e) any requirement that the employee make premium payments to maintain health benefits and the arrangements for making such payments, and the possible consequences for failure to make such payments on a timely basis;

(f) any requirement that the employee present a fitness for duty certificate to be restored to employment;

(g) whether the employee is a “key employee”;

(h) if the employee is a “key employee, that restoration may be denied following FMLA leave, and explaining the conditions required for such a denial;

(i) that the employee (other than “key employee”) has a right to restoration to the same or an equivalent position upon return from leave; and

(j) that the employee may be required to pay health insurance premiums paid by the employer during the employee’s FMLA leave if the employee fails to return to work after taking FMLA leave.

4. If an employer decides to require the employee to have a medical certification form filled out, the employer should request the certification at the time the employee gives notice of the need for leave, or within two business days thereafter. The employer must also advise the employee of the anticipated consequences of his failure to provide adequate certification. If the employer subsequently fines a submitted certification to be incomplete, the employer is required to so advise the employee and grant a reasonable opportunity to cure any deficiency.

5. When an employee takes paid or unpaid leave from work for a reason covered by the FMLA, the employer can count the leave against the employee’s annual twelve-week allotment of FMLA leave. An employer may also require an employee who requests unpaid leave to substitute applicable paid leave. If an employer wants to require that paid leave be substituted for unpaid leave, or to count paid leave under an existing leave plan as FMLA leave, the employer must usually communicate this decision to the employee within two days after the employee gives notice of the need for leave. If the notice is given orally rather than in writing, the notice should be confirmed in writing no later than the following payday, unless that payday is less than one week after the oral notice.

Employers are also required to make and keep, for at least three years, a number of specific categories of records which document their compliance with the FMLA, such as payroll records, records showing dates and hours FMLA leave is taken, and records regarding any disputes between the employer and the employee regarding FMLA leave.

THIS MEMORANDUM IS FOR GENERAL INFORMATION ONLY, AND IS NOT INTENDED TO PROVIDE LEGAL ADVICE AS TO ANY PARTICULAR SITUATION. EMPLOYMENT LAWS ARE CONSTANTLY SUBJECT TO CHANGE. QUESTIONS ABOUT PARTICULAR SITUATIONS SHOULD BE DIRECTED TO A KNOWLEDGEABLE EMPLOYMENT ATTORNEY.

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