DOES THE FAMILY AND MEDICAL LEAVE ACT APPLY?

DOES THE FAMILY AND MEDICAL LEAVE ACT APPLY?
By Bruce M. Luchansky

The Family and Medical Leave Act of 1993 gives employees yet another reason to sue their employers. The Act sounds simple enough. Employers must provide their employees with up to 12 weeks of unpaid leave per year for the birth or adoption of a child, or for the serious health condition of the employee or a close family member. In practice, however, the Act is a nightmare. There are detailed notice requirements, all of which fall on the employer. If an employer violates the Act, it can be sued for back pay and benefits, liquidated damages, interest, attorney's fees, reinstatement, and even promotion.

Exceptions

The FMLA does not, however, apply to everyone. The Act does not apply to small employers, or to employees who have been hired recently. Although the exceptions to coverage are few, they are worth exploring every time an employee requests leave.

In each case, there are two coverage questions. First, is the employer covered by the FMLA? Second, even if the employer generally is covered, is the specific employee who is requesting leave eligible for FMLA benefits? The questions must be considered separately, in that order.

Employer Coverage

The FMLA applies only to employers who have had 50 or more full, part-time, or temporary employees on their books for 20 or more weeks during this calendar year or during the last calendar year. Once an employer has had 50 employees on its books for 20 weeks, the employer is covered by the Act -- both for this year, and for the next calendar year. This is true even if the payroll drops below the 50 employee mark during those two calendar years -- the employer is still covered until the two years expire.

Employers not covered by the FMLA may establish their own policies about the length of leave available to employees, may determine the notice requirements that employees must follow to request leave, and may retain the discretion to grant or deny leave requests, subject only to limitations created by other laws, such as the Civil Rights Act of 1964 and the Americans With Disabilities Act. For example, exempt employers must provide leave for pregnancy to the same extent it provides leave for other temporary disabilities.

Employee Eligibility

Even if the company has more than 50 employees, however, there are times when the particular employee requesting the FMLA leave is not "eligible" for it. If the employee is not eligible under the FMLA -- even though the employer generally is covered because it has more than 50 employees -- the company does not have to comply with the FMLA with respect to that employee.

There are two categories of non-eligible employees. First, employees are not covered until they have worked for the company for more than 12 months (not necessarily consecutively), and until they have worked 1,250 hours during the last 12 months. Recent hires, therefore, are not automatically covered under the FMLA - even if the company generally is. If there is any doubt about whether an employee who is requesting FMLA leave has reached this service requirement, the employer should check his length of employment before granting or denying leave. If an employer grants FMLA leave by mistake to an ineligible employee, the employer cannot change its mind once the leave has begun; the employee will be protected.

A second exception exists for employers with scattered work sites, such as construction companies. Even if the employer has more than 50 total employees in its home office and on crews in different regions, employees are eligible under the FMLA only if they are employed at a work site where there are 50 or more employees within a 75 mile radius. If fewer than 50 employees are hired for job sites that are within a 75-mile radius of each other, those crews are not covered by the FMLA.

Sample FMLA Policy

If you are covered by the FMLA, the following policy is a good starting point. Remember, the consequences of noncompliance can be costly and further interfere with the operation of your business.

Family and Medical Leave

An employee who has worked for the Company at least 12 months before the leave request and has worked at least 1,250 hours during the last 12 months is eligible to take family or medical leave. Eligible staff may take a total of 12 workweeks of unpaid leave during any 12-month period when leave is taken for one or more of the following reasons:
- Birth or adoption of a child of the employee, or placement of a child with the employee for foster care (family leave).
- To care for the spouse, son, daughter, or parent of the employee, if the family member has a serious health condition (medical leave).
- A serious health condition of the employee prevents the employee from performing the functions of his/her position (medical leave).
Temporary or part-time employees working less than 1,250 hours per year are not eligible for family or medical leave.
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care and/or continuing medical treatment. A serious health condition must be supported by a timely certification from a qualified health care provider of the employee. The Company may require and pay for a second or third opinion from qualified health providers of its choice. Upon your return to work, the Company may require a fitness for duty examination.
Thirty days advance notice is required when the leave is foreseeable. In addition, when foreseeable leave is for planned medical treatment, a reasonable effort must be made to schedule the treatment so as not to unduly disrupt the Company's operations.
Unused paid leave must first be applied before family/medical leave is available. For example, unused vacation time will be applied before family leave is available. Unused sick days and/or vacations days will be applied before medical leave to care for a family member is available. Unused sick days and/or vacations days will be applied before medical leave is available due to a serious health condition of the employee. Family/medical leave may be used to make up the difference between available paid leave as described above and twelve weeks.
Subject to the preceding provision, employees may retain other previously credited service and benefits while on leave. They will not, however, receive additional service or benefits (vacation or sick days) during leave.
Employees returning from medical leave will provide certification that they are able to resume work. Upon expiration of the leave, employees can return either to their former position or an equivalent position with equivalent benefits, pay, and conditions of employment. The Company, however, cannot guarantee job restoration to the former or an equivalent position for employees who are among the highest paid 10% if the employee's absence will cause substantial and grievous injury to the Company's operations.
Health insurance benefits can be continued during the leave under the same conditions applicable to active employees. Employees will remit their portion of insurance premiums monthly. The Company may elect to recover any health insurance premiums it pays if the employee fails to return to work after the leave for a reason other than (1) the continuation, recurrence, or onset of a serious health condition that would entitle the employee to leave, or (2) other circumstances beyond the employee's control.
Medical leave (but not family leave) may be taken on an intermittent or part-time basis. Should that occur, under some circumstances the employee may be required to take a temporary transfer. The Company will require an employee on leave to periodically report to his/her supervisor of his/her status and intention to return to work. Family leave may not be initiated after the twelve-month period following the birth, adoption, or placement of a foster child.
The Company reserves any and all rights and privileges granted to employers under the laws mandating family and medical leave, even if not expressly set forth in this policy.

Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 1999 - 2010 Kollman & Saucier, P.A. All rights reserved.
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DOES THE FAMILY AND MEDICAL LEAVE ACT APPLY? By Bruce M. Luchansky

DOES THE FAMILY AND MEDICAL LEAVE ACT APPLY?
By Bruce M. Luchansky