FAQs ABOUT THE FAMILY AND MEDICAL LEAVE ACT (FMLA): A BASIC SUMMARY OF THE FMLA, NOW THAT THE LAW HAS BEEN EXPANDED AND A NEW SET OF FMLA REGULATIONS PROMULGATED (March 2013)

by Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: 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:

Non-military related leaves:
  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.
  4. For incapacity due to pregnancy, prenatal medical care or child birth
Military service related leaves: Eligible employees with a spouse, child, or parent on active duty or call to active duty status in the National Guard or Reserves in support of a contingency operation may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.

The FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered service member during a single 12-month period. A covered service member is a current member of the Armed Forces, (including a member of the National Guard or Reserves) who has a serious injury or illness incurred in the line of duty on active duty that may render him/her medically unfit to perform his/her duties, for which he/she is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list.

For more information about these military types of leaves, please see my 2009 article on this website entitled: Family and Medical Leave Act Regulations effective January 16, 2009 Greatly Expand The FMLA, Placing New Obligations On Both Employers and Employees.

HOW MUCH NOTICE MUST EMLOYEES GIVE OF THE NEED TO TAKE FMLA LEAVE, AND WHAT INFORMATION MUST THEY PROVIDE TO THE EMPLOYER?

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. When 30 days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer's normal call-in procedures.

Employees must provide sufficient information for the employer to determine whether the requested leave may qualify for FMLA protection, and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform his/her own job functions, that a family member is unable to perform his/her daily activities, that hospitalization or continuing treatment by a health care provider is needed, or that circumstances exist that support the need for military family leave. Employees also must inform the employer if the requested leave is for a reason for which FMLA leave was previously taken or certified as FMLA qualifying. Employees also may be required to provide a certification and periodic recertification supporting the need for leave.

WHAT IS A "SERIOUS HEALTH CONDITION"?

What is the definition of an employee's or a covered family member's "serious health condition" which may give rise to a right to FMLA leave? There are detailed regulations which define what will be deemed a "serious health condition". Basically, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee's job, or prevents the qualified family member from participating in school or other daily activities.

Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider, or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of "continuing treatment". 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.

CAN FMLA LEAVE BE TAKEN INTERMITTENTLY RATHER THAN ALL AT ONE TIME?

An employee does not need to use FMLA leave entitlement all in one block. Leave can be taken intermittently or on a reduced leave schedule when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer's operations. Leave due to qualifying military exigencies may also be taken on an intermittent basis.

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.

Substitution of Paid Leave for Unpaid Leave

Employees may choose or employers may require use of accrued paid leave while taking FMLA leave. In order to use paid leave for FMLA leave, employees must comply with the employer's normal paid leave policies.

FMLA EMPLOYER NOTICE AND LEAVE DESIGNATION RULES

If a covered employer has any eligible employees, it must give a general notice of FMLA rights and responsibilities to each employee by including it in an employee handbook or other written guidance, or by distributing a copy each new employee upon hire. In either case, distribution may be accomplished electronically.

Eligibility notices. When an employee requests FMLA leave, or when the employer learns that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of his/her eligibility to take FMLA leave within five business days, absent extenuating circumstances. The notice must specify any additional information required from the employee, such as a certification of the need for leave from his/her physician, as well as describe the employees' FMLA rights and responsibilities. If an employee is not eligible, such as because he/she hasn't yet worked for the employer for 12 months, the employer must provide a reason for the ineligibility. The Department of Labor has issued an eligibility notice form which employers would generally be well advised to use.

Designation notice. When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and counted as FMLA leave, within five business days absent extenuating circumstances. The DOL has issued a Designation notice which contains the permitted and required entries, which an employer would generally be well advised to use.

HOW IS THE 12 WEEK FMLA PERIOD COMPUTED?

A business is well advised to announce to its employees 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 at least 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. Some employers may prefer not to use the calendar year calculation method because it allows an employee to "stack" 24 weeks of FMLA 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 from similarly situated employees (eg, same occupation, same serious health condition) which has been communicated to the employee before leave commences.

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. If he does choose to accept light duty, the time spent on light duty generally does not count against his FMLA leave allotment.

WHAT RECORDS ABOUT FMLA LEAVES ARE EMPLOYERS REQUIRED TO KEEP?

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 ARTICLE 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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Contact Info

Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com