FAMILY AND MEDICAL LEAVE ACT - Top 10 FMLA mistakes employers still make

Date: May 3, 2004
The Family and Medical Leave Act (FMLA) is deceptively simple: Eligible employees receive 12 weeks of unpaid leave every 12 months for their own or a family member’s serious health condition. As a result of that simplicity, many employers have worked the FMLA requirements into their existing leave policies with the assumption that they’re in compliance. But an overlay of employee-friendly regulations and recent court opinions that have given the broadest possible reach of the statute make such a continued practice dangerous. While employers generally find the basic FMLA theory a lot clearer than factual application in specific cases, noncompliance with the regulations can, and often does, result in unwitting and costly violations. This article will identify the most common errors employers still make and, in the second installment, provide a general summary of the FMLA’s most significant requirements. Top 10 violations As reported in 1998, the most common mistakes that have resulted in the U.S. Department of Labor (DOL) finding employer violations are: 1. failing to notify an employee of her FMLA rights; 2. failing to notify an employee that leave counted toward her 12-week FMLA entitlement; 3. counting FMLA leave against the firm’s absentee policy for disciplinary purposes; 4. taking disciplinary action against an employee for using FMLA leave; 5. failing to grant leave to provide physical care or psychological comfort to a seriously ill patient; 6. failing to reinstate an employee to the same or an equivalent position, including the same shift; 7. terminating an employee during or at the conclusion of FMLA leave; 8. failing to grant FMLA leave because of a misunderstanding of what qualifies as a “serious health condition”; 9. failing to request medical certification in writing and not giving the employee at least 15 days to obtain medical certification; and 10. failing to handle questions about the validity of a medical certification by guidelines set forth in the FMLA regulations. FMLA leave – what does it require? The FMLA was enacted to enable employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent with a “serious health condition.” In addressing the need for this legislation, the law stresses the increase in single-parent households or homes in which both parents work and the lack of private employment policies that address the needs of parents to care for themselves, their children, and their parents in times of medical need. In brief, the FMLA provides up to 12 weeks of unpaid leave for most employees of employers that have 50 or more employees. Moreover, it protects employees from a loss of accrued benefits and, in particular, requires covered employers to maintain an employee’s health insurance benefits during her period of leave. Employees are also protected from discrimination, retaliation, or other interference with any actual or intended exercise of the rights provided by the law. In return, employers may require employees to use certain employer-provided vacation time or personal or sick leave as part of the 12-week period and are permitted to require medical certification in support of leave requested for a serious health condition of the employee or her spouse or children. Employers may also place reasonable demands on employees to report periodically on their status and intent to return to work. What are the eligibility requirements? The leave provided under the FMLA is available only to “eligible employees” working for employers that have at least 50 employees (the 50-employee requirement doesn’t apply to public employers and certain educational institutions). The Act specifically defines an “eligible employee” as an employee who has been employed for at least 12 months by the employer from whom the leave is requested and who has rendered at least 1,250 hours of service to that employer during the preceding 12-month period. Excluded from the definition, however, is any employee who’s employed at a work site at which the employer employs fewer than 50 employees if the total number of employees employed by that employer within a 75-mile radius is also fewer than 50. Employers on the borderline should consider the entirety of their operations and whether they could potentially be considered a “joint employer” with another enterprise. What are the leave requirements? In general, the FMLA provides that eligible employees are entitled to 12 weeks of leave during a 12-month period for any one of the following reasons: 1. the birth of a son or daughter of the employee; 2. the placement of a son or daughter with the employee for adoption or foster care; 3. to care for a spouse, son or daughter, or parent who has a serious health condition; or 4. a serious health condition that renders the employee unable to perform the functions of her position. The employer may chose, on a uniform basis that’s applicable to all employees, either a rolling 12-month period or anniversary-year basis for measuring each employee’s 12 months or a standard 12-month period (e.g., calendar year, fiscal year, or labor contract year). A “serious health condition” is defined as an “illness, injury, impairment or physical or mental condition that involves (A) inpatient care in a hospital, hospice or residential medical care facility, or (B) continuing treatment by a health care provider.” The term isn’t intended to cover short-term conditions for which treatment and recovery are brief. But DOL guidance has made reliance on that general exclusion problematic. Minor conditions may still be serious health conditions if they meet the requirements of the regulations. Courts have been willing to conclude that employees have satisfied the requirement even with minor medical problems. Examples of serious health conditions covered by the law include heart attacks, heart conditions requiring bypass surgery, back conditions, strokes, most cancers, spinal injuries, appendicitis, pneumonia, emphysema, and childbirth and recovery from a serious health condition is intended to include psychological as well as physical care. The FMLA defines the term “son or daughter” to apply generally only to children under age 18. It includes not only biological children but also adopted and foster children, stepchildren, a legal ward, or the child of a person standing in place of the parent. It also includes children 18 or older who are incapable of self-care because of a physical or mental disability. The term “parent” includes any individual who stood in place of the parent to an employee when the employee was a child as well as biological parents, but it doesn’t specifically include in-laws. Leave may be taken on an intermittent or reduced-schedule basis for the birth or adoption of a child provided the arrangement is agreed to by the employer. Leave for serious health conditions of either a family member or the employee, however, may be taken intermittently or on a reduced schedule without the employer’s prior agreement provided the care is medically necessary. When intermittent or reduced-schedule leave requested for a serious health condition is foreseeable because of planned medical treatment, the employer may require the employee to temporarily transfer to an available alternative position for which she’s qualified. The alternative position, however, must have equivalent pay and benefits and must be better able to accommodate the recurring periods of leave than the employee’s regular position. When leave for a serious health condition is based on a planned medical treatment, the employee is required to make a “reasonable effort” to schedule the treatment so as not to disrupt the employer’s operations, subject to the approval of the health care provider of the individual with the serious health condition. Leave taken for the birth or placement of a child expires 12 months after the child’s birth or placement. Moreover, if such leave is foreseeable, the employee is required to provide the employer with at least 30 days’ notice before the leave will begin, if possible. Further, the FMLA protects an employee’s right to be restored to the same job she held before the leave began or an equivalent position. Employees in certain “highly compensated” positions, however, may be denied job restoration if the denial is necessary to “prevent substantial and grievous injury to the employer’s operations,” the employer provides the employee with notice of the intent to deny restoration and the basis for the denial, and, if leave has commenced, the employee elects not to return after receiving such notice. The Act defines a highly compensated employee as any salaried employee who is among the highest-paid 10 percent of the employees employed by the employer within a 75-mile radius of the facility at which the employee works. Finally, while the FMLA doesn’t require that an employee on leave be permitted to accrue seniority or other similar employment benefits during the leave, it does protect an employee from the loss of any benefits accrued before the date the leave commenced. It also provides for the continuation of group health benefits during the leave. Employers may require that employees use their accrued paid vacation or personal leave as part of the mandatory 12-week period. In addition, employers may require use of paid sick leave for leaves involving the “serious health condition” of an employee or a covered family member. Likewise, an employee may elect paid leave the employer may have required her to take, except that an employee may not elect paid sick leave if it wouldn’t otherwise have been available under the employer’s policy. If paid leave is used by an employee for leave purposes under the FMLA, the employer is required to provide only enough unpaid leave to equal a total of 12 weeks. Employers, however, may not trade shorter periods of paid leave for the longer periods of unpaid leave provided for by the Act.