An Employer’s Guide to the FMLA – Nassau Lawyer 2007

By: Paul F. Millus
October 1, 2007

By:  Paul F. Millus

The Family and Medical Leave Act i is one of the most complex regulations affecting employment and among the more misunderstood in terms of what it really means to employers.  In sum, if the employer has 50 or more employees, most employees are permitted to use up to twelve workweeks of unpaid , job-protected leave per year, while their group health benefits are maintained and the hardship caused to the employer by such leave is not a relevant consideration. ii

To be eligible, a full or part-time employee (i) must have worked at least 12 months; (ii) the employee has worked 1,250 hours over the prior 12 months (not including paid leave or Workers’ Compensation); and (iii) the leave must constitute qualified leave under the FMLA. iii

Leave and Its Limits

The FMLA recognizes three types of qualifying leave.  They are: (I) leave based on the birth, adoption or placement of a child in foster care;  (ii) the employee suffers from a serious health condition; or (iii) the employee’s family member has a serious health condition. iv

Leave for adoption must involve a child under the age of 18 unless the child suffers from a mental or physical handicap. v  An employee has a “serious health condition” when he is unable to work due to an illness, injury, impairment, or physical or mental condition that involves an overnight stay in a hospital, hospice or residential medical care facility; or a period of incapacity of more than 3 calendar days and any continuing treatment that involves treatment 2 or more times which does not included are routine physicals, eye exams or dental exams.  A “serious health condition would also include incapacity resulting from (I) pregnancy or for prenatal care; (ii) a chronic illness such as asthma, diabetes, epilepsy, etc.; or (iii) from a permanent or long term illness due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.). vi

Moreover, where the employee suffers from a serious health condition and seeks to qualify for FMLA leave, that condition must make her unable to perform her essential job function.  An employee is unable to perform the essential functions of her job when: (I) the doctor finds that the employee is unable to work at all; or (ii) the employee is unable to perform any one of the essential functions of the employee’s position within the meaning of the Americans with Disabilities Act (ADA). vii Assuming the employee satisfies these conditions, the employee may take leave for a continuous 12 week period if warranted or may take intermittent leave, that is, an eligible employee may take leave in blocks of time, or by reducing his normal weekly or daily work schedule which cannot exceed 12 weeks in total. viii

As for a family member’s serious health condition, the leave must be to care for an immediate family member (spouse, child or parent) with a serious health condition. ix  A spouse means a husband or wife as defined by law. x  A parent is either the biological parent or the person who acted as the parent when the employee was a child.  It does not include parents “in law”.  A son or daughter means a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under the age of 18 or older than 18 and “incapable of self-care because of a mental or physical disability”.

Doveryay, No Proveryay – Trust But Verify

President Ronald Reagan once quoted the above Russian proverb and it applies to the FMLA as well.   An employer can require its employee to provide a certification issued by a health care provider to support a request for leave to determine if the basis for the leave is legitimate. xi

When the leave is foreseeable and at least 30 days notice has been provided, the employee should provide the medical certification before the leave begins.  When this is not possible, the employee must provide the requested certification to the employer within the time frame requested by the employer, which must allow for at least 15 calendar days after the employer’s request, unless it is not practicable despite the employee’s good faith efforts.  The employer should request the certification at the time the employee gives notice, or within 2 business days thereafter, or, in the case of unforeseen leave, within 2 business days after the leave commences. xii

At the time the employer requests certification, the employer must also advise the employee of the anticipated consequences of an employee’s failure to provide adequate certification.  If an employee fails to provide a medical certification within a reasonable time under the existing circumstances, the employer may delay the employee’s continuation of FMLA leave.  If the employee never produces the certification, the leave is not FMLA leave  and the employee may be terminated for taking non-qualifying leave. xiii  The content of the certification,  must include all of the information set forth in Form WH-380 which is available on the US Department of Labor’s website.  The employer shall advise an employee whenever the certification is incomplete, and provide the employee a reasonable opportunity to cure any deficiency. xiv  During the leave period, under certain circumstances, the employer may also request medical re-certification. xv

Benefits Continuation

Leave is unpaid unless the employer permits the use of accrued paid leave during the FMLA leave. xvi  During the leave period, the employer is required to follow established policies or practices for continuing benefits such as life and disability insurance or other benefits the employee is typically required to fund. xvii  The general rule concerning health benefits continuation is that the employer must treat the employee’s group health coverage as if the employee never left and continue to pay the employer’s share of such benefits while arranging with the employee who is responsible to pay all applicable premiums while on leave. xviii

Benefits based on seniority or paid leave benefits, do not normally accrue during FMLA leave unless employees on other types of leave continue to accrue such benefits. xix  Bonuses based on perfect attendance or safety cannot be impacted by FMLA leave.  In terms of performance bonuses, if other employees who have taken non-FMLA leave receive bonuses, then FMLA leave employees should be treated similarly. xx

Job Restoration Not Guaranteed

An employer may refuse leave in the first instance or terminate an employee while on leave if: xxi

  • employment would have been terminated irrespective of FMLA leave (i.e. RIF)
  • the employee states her intent not to return from leave;
  • the employee fails to return from leave or continues on leave after exhausting the leave entitlement;
  • the employer is not given timely notice when leave is foreseeable;
  • the employee fails to provide medical certification;
  • the employee fails to periodically report on his condition as required by employer:
  • employee is unable to perform an essential function of the position because of a physical or mental condition i.e. the continuation of a serious health condition; or
  • the employee is a “key” employee. xxii

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.  Indeed, if an employer can demonstrate that an employee would not otherwise have been employed at the time reinstatement is requested, the employer’s responsibility to continue FMLA leave and to maintain group health plan benefits ceases and restoration need not occur.

The Employee’s Return to Work.

The employee may be required to provide medical certification that she is fit for duty and able to return to work xxiii and the employer may delay restoration until the certification is provided. xxiv

Assuming the certification requirement has been met, an employee has the right to return to her workplace at the same rate of pay and benefits as though she never left. xxv  Specifically, an employee is entitled to be returned to the same position, or equivalent position with equivalent benefits, pay, and other terms and conditions of employment.  xxvi

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, which must entail substantially equivalent skill, effort, responsibility, and authority. xxvii An employee is entitled to be restored to a position with the same or equivalent pay premiums, such as a shift differential.  For example, if an employee departed from a position averaging ten hours of overtime (and corresponding overtime pay) each week, an employee is ordinarily entitled to such a position upon return from FMLA leave.

Equivalent pay is the same rate of pay including any unconditional pay increases during the FMLA leave period, such as cost of living increases.  Ordinarily, pay increases would not have to be granted if conditioned upon (I) seniority, (ii) length of service, or (iii) work performed. xxviii  Equivalent benefits are all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions.  However, benefits accrued at the time leave began, such as, paid vacation, sick or personal leave to the extent not substituted for FMLA leave, must be available to an employee upon return from leave. xxix

Equivalent terms and conditions of employment mean that the position must have substantially similar duties, conditions, responsibilities, privileges and status as the employee’s original position. xxx

Conclusion

Administering the FMLA may be challenging.  However, employers should realize that the FMLA helps them keep valuable employees during times of crises while still providing adequate protections and flexibility to ensure that their businesses can still function profitably as they comply with the law.

  1. Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et seq. and 29 C.F.R. Part825 et seq.
  2. 29 C.F.R. §§ 825.104- 109 (Employers covered under the Act)
  3. 29 C.F.R. §§ 825.110- 111 (Employees covered under the Act)
  4. 29 C.F.R. § 825.112
  5. 29 C.F.R. § 825. 201
  6. 29 C.F.R. § 835.114
  7. 29 C.F.R. § 825.115
  8. For intermittent or reduced schedule leave there must a serious health condition that prevents the employee from doing his job. The employer may limit leave increments to the shortest period of time that its payroll system uses to account for absences. 29 C.F.R. § 825.117. See also 29 C.F.R. §§ 825.203, 205 and 601
  9. 29 C.F.R § 825.116
  10. 29 C.F.R. § 113
  11. 29 C.F.R. §§ 825.305-306 N.B.- An employer may also demand documentation concerning the adoption of a child
  12. 29 C.F.R. §§ 825.302-303
  13. 29 C.F.R. § 825.304
  14. 29 C.F.R. § 825.301. See also Form WH-381 found on the U.S. Department of Labor website.
  15. 29 C.F.R. § 825.308
  16. 29 C.F.R. § 825.207
  17. 29 C.F.R § 825.209
  18. 29 C.F.R. § 825.210
  19. 29 C.F.R. § 825.215(c)(1)
  20. 29 C.F.R. § 825.215(c)(2)
  21. 29 C.F.R. § 825.216
  22. 29 C.F.R. §§ 825.217-219, 312 ( a “key” employee is a salaried employee who is among the highest paid 10% of all employees).
  23. 29 C.F.R. § 825.310
  24. 29 C.F.R. § 825.312
  25. 29 C.F.R. § 825.314
  26. 29 C.F.R. § 825.215
  27. 29 C.F.R. § 825.215 (a)
  28. 29 C.F.R. § 825.215(c)
  29. 29 C.F.R. § 825.215(d)
  30. 29 C.F.R. § 825.215(e)