| I.
Overview of the Family and Medical Leave Act (FMLA)
The federal Family and Medical
Leave Act of 1993 (FMLA), 28 U.S.C. § 2601 et seq.,
applies to most employers with fifty or more employees.
The FMLA requires covered employers to grant up
to twelve weeks of family and medical leave each
year to eligible employees.
This first section of these
materials is a primer on the FMLA. Employers will
find here "the basics" -the who, what,
where, when, and some of the "why." The "how" -how
to put together a policy and how to administer your
policy -may be found in Section V.
- Which employers are
covered by the FMLA?
A "covered" employer
is one that employs fifty (50) or more employees
each working day during each of twenty (20) or
more calendar workweeks in the current or preceding
calendar year, including successor employers, schools,
and public agencies.
--"Employee" includes:
full time, part-time, hourly, salaried, exempt,
and non-exempt employees.
--If an employee's name appears on the payroll
for a given week, the employee is deemed to have
been employed for that week. Also, any employee
on leave of any kind generally counts towards
the required total of fifty.
Sometimes, an employer with
fewer than fifty employees may be "covered" if
it meets the "integrated employer test" (two
or more businesses may constitute one employer
if they have one or more of the following characteristics:
common management; interrelations between operations;
centralized control of labor relations; and a high
degree of common ownership or financial control)
or the "joint employers" test (a joint
employment relationship may exist if two employers
have an arrangement to share an employee's services
or if they share control of the employee, whether
directly or indirectly).
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- Which
employees are eligible to take FMLA leave?
In general, an employee is
eligible to take FMLA leave if he or she has been
employed by the employer for a minimum twelve (12)
months total (current and prior employment) and
if he or she has worked at least 1250 hours for
the employer during the 12-month period immediately
preceding the commencement of the leave. Note that
the employee need not have worked for the employer
for 12 consecutive months, as long as the
1250-hour requirement is met.
For employers with multiple
sites, the employee must have worked on a site
at which fifty (50) or more employees work, unless
the total number of employees within seventy-five
(75) miles of the worksite is 50 or more.
Note that in order to be eligible
to take FMLA leave, an employee must not have used
up his or her 12-week allotment of leave during
the current "leave year" (see Section
V.G).
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- What
are the legitimate reasons for taking FMLA leave?
An eligible employee
may take family and medical leave (up to
twelve weeks) only for one of the four following
reasons:
--because of the birth
of a child and to care for the newborn
child
--because of the placement of a child with
the employee for adoption or foster care;
--because the employee is needed to care
for a family member (son or daughter, spouse,
or parent) with a serious health condition;
or
--because the employee's own serious health
condition makes the employee unable to perform
the functions of his or her job.
Leave taken due to the birth,
placement, or adoption of a child must be taken
within one year of the qualifying event.
In the case of leave taken
due to a placement or adoption, the child must
be under 18 years of age.
For FMLA purposes,
--"Son or daughter" means
a biological, adopted, or foster child,
a step child, a legal ward, or a child
of a person standing in loco parentis,
who is either under age 18, or age 18 or
older and "incapable of self-care
because of a mental or physical disability,"
i.e., requires assistance or supervision
in three or more activities of daily living
such as grooming, bathing, dressing, eating,
cooking, cleaning, shopping, paying bills,
maintaining a residence, using telephones,
and so on.
--"Spouse" means a husband or wife
as recognized under state law for purposes
of marriage in the state where the employee
resides. Note that the State of Maine does
not recognize "common law" marriage.
--"Parent" means a biological parent
or an individual who stands or stood in loco
parentis to an employee when the employee
was a son or daughter as defined above. The
term "parent" specifically excludes
"in-laws."
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- What
is the definition of a serious health condition?
There are six definitions
of a serious health condition. A "serious
health condition" is an illness, injury,
impairment, or physical or mental condition
that involves one of the following:
(1)Hospital Care
Inpatient care (i.e.,
an overnight stay) in a hospital, hospice,
or residential medical care facility, including
any period of incapacity or subsequent treatment
in connection with or consequent to such inpatient
care.
"Incapacity" means,
for purposes of the FMLA, the inability to
work, attend school, or perform other regular
daily activities due to the serious health
condition (or due to treatment for the condition,
or due to the need for recovery from the condition).
2) Absence Plus Treatment
A period of incapacity
of more than three consecutive days (including
any subsequent treatment or period of incapacity
relating to the same condition), that also
involves:
a) Treatment two
or more times by a health care provider,
by a nurse or Physician's assistant under
direct supervision of a health care provider,
or by a provider of health care services
(e.g., physical therapist) under orders
of, or on referral by, a health care
provider;
or
b) Treatment by a health
care provider on at least one occasion which
results in a "regimen of continuing
treatment"
under the supervision of the health care provider.
"Treatment" includes
examinations to determine if a serious health
condition exists and evaluations of the condition.
Treatment does not include routine physical
examinations, eye examinations, or dental examinations.
A "regimen of continuing
treatment" includes, for example, a course
of prescription medication (e.g., an antibiotic)
or therapy requiring special equipment to resolve
or alleviate the health condition. A regimen
of treatment does not include the taking of
over-the-counter medications such as aspirin,
antihistamines, or salves; or bed-rest, drinking,
fluids, exercise, and other similar activities
that can be initiated without a visit to a
health care provider.
3) Pregnancy
Any period of incapacity
due to pregnancy, or for prenatal care.
4) Chronic Conditions
Requiring Treatments
A chronic condition which:
a) Requires periodic
visits for treatment by a health care
provider, or by a nurse or physician's
assistant under direct supervision of
a health care provider;
and
b) Continues over an
extended period of time (including recurring
episodes of a single underlying condition);
and
c) may cause episodic
rather an a continuing period of incapacity
(e.g., asthma, diabetes, epilepsy, etc,)
5) Permanent/Long-term
Conditions Requiring Supervision
A period of incapacity
which is permanent or long-term due to a condition
for which treatment may not be effective, The
employee or family member must be under the
continuing supervision of, but need not be
receiving active treatment by, a health care
provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
6) Multiple Treatments
(Non-Chronic Conditions)
Any period of absence
to receive multiple treatments (including any
period of Recovery therefrom) by a health care
provider or by a provider of health care services
under orders of, or on referral by, a health
care provider, either for restorative surgery
after an accident or other injury, or for a
condition that would likely result in a period
of incapacity of more than three consecutive
calendar days in the absence of medical intervention
or treatment, such as cancer (chemotherapy,
radiation, etc,), severe arthritis (physical
therapy), kidney disease (dialysis).
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- What
is the employee's right to reinstatement?
Employers must reinstate employees
who take FMLA leave to the prior position or to
an equivalent position. An "equivalent position"
is one with equivalent benefits, pay, and other terms
and conditions of employment, without loss of accrued
and unused benefits.
There are some exceptions
to the FMLA' s rule regarding reinstatement. Employees
whose employment would have been terminated even
if they had not Taken leave are not protected from
the vicissitudes of modern business. Downsizings,
layoffs, and outsourcing may be implemented even
when an affected employee is on FMLA leave. When
the employee seeks restoration, the employer must
be able to show that the employee would not have
been employed if he or she had not taken the leave
of absence. Similarly, an employee may be terminated
for a performance or other valid reason if such
termination would occur whether or not the employee
was on leave.
Employees who have not provided
employers with an appropriately requested "fitness
for duty" certification may be denied restoration
to work. Employees who have fraudulently obtained
FMLA leave may be denied restoration to work.
Another exception to the general
rule of restoration is for certain highly paid
employees who may be designated as "key employees."
A key employee is an employee who is (1) salaried
(not hourly) and (2) among the top 10% of all employees
working within a 75-mile radius of the key employee's
worksite in terms of pay (measured among all employees,
salaried and hourly alike). If an employee is a key
employee, and if the employer has designated the
employee as a key employee at the beginning
of the FMLA leave, the employer may deny restoration
if the employer can show that the such restoration
(as opposed to the leave itself) would cause "substantial
and grievous economic injury" to the employer's
operations.
--Employers should consider
whether they are able temporarily to replace
or do without the key employee. If permanent
replacement is unavoidable, then the employer
should consider the cost of reinstating the
key employee in the course of evaluating whether
there would be substantial and grievous economic
injury.
--There is no precise test
for what amounts to substantial and grievous
economic injury .At one end of the spectrum,
if the economic viability of the business would
be threatened by restoration of the key employee,
then clearly the test has been met. At the other
end of the spectrum are minor inconveniences
and costs that employers normally encounter in
the course of doing business. Restoring most
key employees will fall somewhere in between,
and each case must be evaluated on an individual
basis.
--The test for substantial
and grievous economic injury is less stringent
and less difficult to meet than the test for "undue
hardship" under the ADA.
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- What
benefits are employees entitled to under the
FMLA?
Unpaid leave of absence of
up to 12 week (usually). See section H below, as
well as section V -F for a discussion of when an
employee must be paid during FMLA leave.
Continuation of current level
of health benefits. An employer must provide continuous
coverage under its health plan to the employee
on FMLA leave on the same terms and conditions
as they would have been provided had the employee
continued in employment and not taken leave. If
the employer normally pays for all or part of family
medical coverage, then the employer must continue
to pay for the same proportion of coverage during
the FMLA leave.
The FMLA does not affect other
benefits of employment, and the employer has the
right to limit such benefits during FMLA leave.
The FMLA is a "minimum," however; many
employers continue some or all of the employee's
other benefits during leave. Also, some employers
may be bound by the terms of collective bargaining
agreements as to which benefits will continue during
family and medical leaves of absence.
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- What
are intermittent leave and a reduced leave schedule?
Intermittent leave is FMLA
leave taken periodically rather than in one. consecutive
period of time. Examples are occasional days off
due to severe migraine headaches, occasional mornings
off for prenatal care, or periodic absences for
chemotherapy treatments and recovery from such
treatments.
A reduced leave schedule is
FMLA leave taken in the form of a part-time schedule.
For example, an employee may work half-days for
several weeks after returning to work following
a heart attack.
Intermittent leave or a reduced
leave schedule is not required in every. circumstance.
Employers may choose, but are not required, to
provide - intermittent or a reduced leave schedule
to employees taking leave for a birth or placement
of a child. For employees taking FMLA leave due
to their own serious health condition or the serious
health condition of a child, parent, or - spouse,
intermittent leave or a reduced leave schedule
must be granted when the health care provider certifies
one of the following circumstances:
--The employee has a serious
health condition and a medical need for leave,
and such medical need can be best accommodated
through an intermittent or reduced leave schedule;
or
--The employee's child,
parent, or spouse has a serious health condition,
and the health care provider has determined that
the employee is "needed to care for" the
family member on an intermittent or part-time
basis. This care includes physical care (when
the family member is unable to attend to his
or her own basic needs or needs transport to
obtain treatment) and psychological care (when
comfort and reassurance would be beneficial to
a family member receiving inpatient or at-home
care).
The employee must attempt
to schedule such leave so as not to disrupt the
employer's operations.
When the need for intermittent
or part-time leave is foreseeable, the employer
may reassign the employee temporarily to an alternative
position that better accommodates the intermittent
or part-time schedule. The alternative position
may be lower in status and responsibility but
the employee must receive the same pay and benefits
that he or she normally receives.
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- Substitution
of Paid Leave
Although FMLA leave is unpaid generally, an
employer may choose to require employees to use
up any paid leave they have accrued. The only limitation
is that accrued leave may not be used for anything
that it is not normally used for.
For example, if an employer does not normally allow
employees to use "sick days" for taking
care of family members, then the employer may not
require the employee to use up accrued "sick
days" for any type of leave except leave taken
due to the employee's own serious health condition.
Even if the employer does not choose to require employees
to use up accrued paid leave, the employee may always
choose to use up accrued leave during FMLA leave.
Once the accrued leave has been used up, the remainder
of the leave may be unpaid.
Many employers have short term disability ("STD")
policies, or similar benefits, that provide for whole
or partial salary continuation during illness or
injury .In most cases involving workplace injuries,
the employee will receive workers' compensation benefits
during any leave of absence. In either case, employers
may not require employees to use up accrued paid
leave during any period of time covered by STD or
workers' compensation benefits.
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- What
certifications and verifications may the employer
require?
Employers may require
employees' health care providers to certify
that the employee has a "serious health
condition."
--Under the FMLA,
employers must accept certifications from
any professional defined as a "health
care provider," including th6 following
categories: doctors of medicine or osteopathy,
podiatrists, dentists, clinical psychologists,
optometrists, chiropractors (for treatments
specific to manipulations of the spine
to correct subluxation demonstrable in
an X-ray), nurse practitioners, nurse-midwives,
clinical social workers, Christian Science
practitioners (officially listed), and
any other health care provider from whom
an employer or the employer's group health
plan will accept certification of a serious
health condition to substantiate a claim
for benefits.
--All of the professionals
listed above must be authorized by the State
within which they practice, and must be practicing
within the scope of their authority under State
law in order to qualify as a "health care
practitioner"
from whom the employer must accept certification.
When an employer does not
agree with the certification provided by an employee
in response to the employer's initial request
for certification, the employer may seek a second
certification by a health care provider of the
employer's choosing and to be paid for by the
employer. Except in geographical areas with limited
access to health care providers, employers may
not choose for the second certification any health
care provider with whom they regularly contract
for any purpose. Should the first and second
certifications disagree as to the need for FMLA
leave or the extent of leave that is needed,
the employee is entitled to a third certification
by a health care provider that the employee and
the employer mutually agree upon. The third certification
is binding on both the employee and the employer.
When an employee is taking
FMLA leave in the form of intermittent leave
or a reduced leave schedule, the employer may
require periodic recertification of the medical
need for such leave.
Except in cases involving
intermittent leave, employers may require employees.
to supply a "fit for duty" certification
before allowing them to return to work.
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- What
is a "Violation" of the FMLA?
The FMLA prohibits interference
with an employee's rights under the law.
More specifically, the following actions
or conduct by employers are considered to
be "violations"
of the FMLA:
Interference with, restraint,
or denial of an employee's right to take FMLA. leave.
--Failure to provide
leave or failure to restore to the same
or an equivalent position would generally
fall under this category of violation.
--This category also
includes when an employer manipulates the
circumstances in order to avoid responsibilities
under the law, such as by transferring
employees to other worksites to avoid reading
the 50-employee threshold, changing the
essential functions of the job just to
avoid an employee taking leave, or reducing
an employee's hours simply to avoid allowing
that employee to reach the 1250-hour threshold.
Discrimination against any
employee who has taken or is taking FMLA leave.
--This includes discriminating
against applicants or employees who have
taken FMLA leave. Also, employers may not
take FMLA-covered leave into account in
any disciplinary decisions or count it
toward days missed under a "no-fault"
attendance policy.
Retaliation against any
person (not only employees) for opposing any
illegal act under the FMLA or for participating
in any proceeding undertaken pursuant to the
FMLA (whether in court or with the Department
of Labor)
--"Participation" includes
filing a charge, giving testimony, or giving
information in connection with an inquiry
or investigation.
Failing to adhere to the
requirements of the statute or the regulations.
--Thus, according
to the U.S. Department of Labor (DOL),
violations of the FMLA that may subject
an employer to liability include such "technical" violations
as a failure to give proper notice.
- What
enforcement rights does the employee have if
the employer violates the FMLA?
Employees who believe
that their rights under the FMLA have been
violated may:
--File a complaint
(or have another person file a complaint
on the employee's behalf) with the DOL;
or
--File a private lawsuit (civil action).
The DOL will investigate any
complaints (complete with subpoena power) and issue
an advisory opinion as to whether a violation has
occurred. The DOL also may bring suit on behalf of
an aggrieved employee.
Employees generally have two or three years to
bring a civil action against an employer. The two-year
statute of limitations applies generally. In cases
in which the employee can show a "willful" (knowing
and intentional) violation, however, the employee
has three years to bring a civil action.
Damages available in
a civil action include:
--lost pay and benefits;
--in cases in which there are no lost pay
or benefits, any actual monetary losses,
e.g., the cost of paying for another
individual to care for a family member
with a serious health condition (up to
twelve weeks' worth);
--interest on any amount of lost pay and
benefits or actual monetary losses, if no
lost pay and benefits;
--in cases involving a "willful" violation,
liquidated damages in the amount of the lost
pay and benefits or actual monetary losses,
if no lost pay and benefits;
--equitable relief such as reinstatement
or promotion; and
--attorneys' fees and costs (including expert
witness fees).
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- Miscellaneous
Employers are required to post a U.S. Department
of Labor (DOL) notice about the FMLA in a conspicuous
place where notices to employees and applicants
are customarily posted.
The actual notice may be obtained from the DOL's
Wage and Hour Division (207-780-3344); ask for "WH
Publication 1420." The penalty for not posting
the required notice is $100 per offense. A copy of
the required notice appears as
Appendix C to 29 C.F .R. § 825.
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II.
Overview of Maine's Family and Medical Leave
Act (FMLA)
Maine's Family and Medical
Leave Requirements, 26 M.R.S.A. § 843 et
seq., apply to any Maine employer with twenty-five
employees total and fifteen or more employees
in one location. Such employers must allow eligible
employees to take a leave of absence for up to
ten consecutive weeks in any two years due to
certain family or medical reasons.
The following guidelines explain
how Maine's act differs from the federal FMLA.
Employers who are covered by the federal FMLA should
note that even when an employee is not eligible
under the federal FMLA, he or she may be covered
under Maine's FMLR. These employers must also take
note that any aspect of Maine's FMLR which is more
generous to employees than is the federal FMLA
must be provided to any employee eligible under
both Acts. Indeed, the employee always receives
the most generous provision whenever the FMLA,
the FMLR, and/or the employer's own policies are
in conflict.
- Which
employers are subject to Maine's FMLR?
Any employer with 25 or more
employees, 15 of whom are in one location, must
comply with the FMLR. (Note that employers with
fifty or more employees in Maine may or may not
be subject to the federal Family and Medical Leave
Act (see Section I), but will always be subject
to the FMLR).
--"Employee" includes
any person who may be permitted, required,
or directed by an employer in consideration
of direct or indirect gain or profit to engage
in any employment but does not include independent
contractors.
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- Which
employees are eligible to take leave under the
FMLR?
Under the FMLR, an employee
of a covered employer who works in a workplace
with 15 or more employees is eligible to take family
or medical leave if he or she has been employed
by the employer for twelve (12) consecutive months.
Note that under the FMLA, the requirement is 12
months total with 1250 hours in the past 12 months,
but not necessarily 12 consecutive months.
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- What
are the four valid reasons for taking FMLR leave?
Under the FMLR, an eligible
employee may take family and medical leave
(up to ten consecutive weeks in any
two years) only for:
--Serious health condition
of the employee;
--The birth of the employee's child;
--The placement of a child 16 years of age
or less with the employee in connection with
the adoption of the child by the employee;
or
--A child, parent, or spouse with a serious
health condition.
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- What
is the definition of "serious health condition"?
The FMLR defines "serious
health condition" similarly to the way that
the federal FMLA statute defines that term.
It is unclear whether the definitions developed
under the U .S. DOL's regulations will apply, however.
A "serious health
condition"
is "an illness, injury, impairment or physical
or mental condition that involves:
A. Inpatient care in
a hospital, hospice or residential medical
care facility;
B. Continuing treatment by a health care provider.
26 M.R.S.A. § 843(6)(1997).
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- What
is the employee's right to reinstatement?
An employer must restore
an employee who has taken family medical leave
to the position held by the employee when the
leave commenced or to a position with equivalent
seniority status, employee benefits, pay and
other terms and conditions of employment.
--An employer may deny
restoration if it can prove that the employee
was not restored as normally required because
of conditions unrelated to the employee's
exercise of rights pursuant to the FMLR.
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- What
benefits are employees entitled to during FMLR
leave?
Leave taken pursuant to
the FMLR is generally unpaid. Of course, the
employer may provide paid leave for any of
the specified reasons if it chooses to do so.
Also, the employee may qualify
for short-term or long-term disability insurance
benefits, if any. This depends on the policy's
specifications.
No benefit accrued before
the commencement of the family medical leave
may be taken away due to the fact that the employee
took the leave.
An employer must make it
possible for employees to continue all their
employee benefits, including but not limited to
health coverage, but wholly at the employee's
expense. Thus, unlike the FMLA, which requires
the employer to continue paying any share paid
by the employer prior to the leave, the FMLR
allows the employer to transfer the entire costs
of health premiums to the employee during leave.
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- How much leave is required
under the FMLR?
Employers need only give ten
consecutive weeks in any two-year period.
Intermittent leave or a
part-time schedule are not required under the
FMLR. The language "any two-year period" suggests
that employers are required to use a "rolling"
leave year rather than a calendar year or other
fixed leave year. (See section V.F.)
Employers may require thirty
(30) days' notice of the need for leave and of
the dates the leave will begin and end, except
in cases where medical emergency prevents the
giving of such notice.
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- Substitution
of Paid Leave
The FMLR is silent with
respect to whether employer can require employees
to use up accrued paid leave, such as sick
days or vacation leave, during family and medical
leave.
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- May
employers require medical verification and certification?
Employers may require
certification from a physician to verify the
need for leave. With one exception (see below),
other practitioners (e.g., nurses, psychologists,
clinical social workers) need not be accepted
by the employer .
Employees who with the tenets
and practice of a recognized church or in good
faith rely on treatment by prayer or other spiritual
means in accordance religious denomination may
submit certification from an accredited practitioner
of those healing methods.
The FMLR is silent with
regard to whether or not employers may use a
certification form or what may included in such
a form. Maine employers not covered by the FM
LA who wish to use a form may wish to adopt the
form suggested by the U.S. DOL (or one similar
to it). Such a form at least has the blessing
of a federal agency that regulates a law similar
to the FMLR, and it seems likely that the Maine
DOL or a court would find the use of such a form
to be reasonable.
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- What
is a violation of the Maine FMLR?
The prohibitions of the FMLR are similar to
those of the FMLA:
Employers may not interfere
with, restrain or deny the exercise of or
the attempt to exercise any right provided
by the FMLR.
Employers may not discriminate
against any employee for exercising any right
provided by the FMLR.
Employers may not retaliate
against any employee who opposes any practice
made unlawful by the FMLR.
--The terms "discriminate"
and retaliate include "discharge, fine,
suspend, expel, discipline or in any other
manner discriminate."
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- How
may employees enforce their rights?
Employees may bring a
civil action against any employer to enforce
their rights under the FMLR.
Remedies available include:
--An injunction against
any act or practice that violates or may
violate this subchapter, and
--Lost wages and benefits-
--Other pecuniary damages (e.g., home nursing
costs or child care costs), and
--Liquidated damages of $100 for each day the
violation continues, payable to the employee.
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- Miscellaneous
Employers must post
the Maine Department of Labor's poster regarding
certain labor laws, including the FMLR, in
an accessible, commonly used area (an area
where employees will see it). This preprinted
notice may be obtained from the Maine DOL
Bureau of Labor Standards (207-624-6400).
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III.
New Legal Developments
This section will discuss
some recent trends in cases decided under the
FMLA.
This section assumes that
the reader is familiar with the previous sections
outlining FMLA basics.
- What
is a Qualifying Reason for FMLA Leave?
Employers should be
wary of overly narrow interpretations of
the definitions of the four qualifying reasons
for FMLA.
--Hodgens v. General
Dynamics Corp. ( 1st Cir. 1998).
In this first case to be decided by the
First Circuit Court of Appeals (the federal
Appeals Court covering Maine) under the
FMLA, the Court made it clear that it
would not be taking a narrow view of "serious
health condition." The court below
had dismissed the case because it found
that the employee could not prove he
was entitled to FMLA-protected leave,
i.e., that he did not have a serious
health condition. Specifically, his physician
was "never able to diagnose precisely
what caused [the employee's] symptoms." The
First Circuit disagreed with this holding,
noting that "[i]t seems unlikely
that Congress intended to punish people
who are unlucky enough to develop new
diseases or to suffer serious symptoms
for some period of time before the medical
profession is able to diagnose the cause
of the problem."
It is an appropriate use ofFMLA leave to diagnose
and treat symptoms that do not necessarily
have a specific diagnosis attached to them,
as long as the condition meets one of the six
definitions of "serious health condition" as
defined in the regulations. The Court also
found that the statutory requirement that an
individual be
"unable to perform" his or her position
in order to qualify for FMLA-protected leave
did not amount to a requirement that the individual
be physically incapacitated to perform the
work. Instead, the Court read the statute to
protect absences that are required for the
purposes of diagnosis and treatment of a serious
health condition. For example, the employee
must be at the doctor's office for testing,
the employee is "unable to perform" his
or her job during that time.
--Kelley v. Crosfield
Catalyst (7th Cir. 1998). An
employee applied for FMLA leave to travel
to another state to take custody of his
daughter after a lengthy legal battle.
The employer denied leave, pointing to
the FMLA regulations, which define "adoption" as
the legal process in which an individual
becomes the legal parent of another's
child. In this case, the employee was
the child's biological father but was
not her legal father until the legal
proceedings were resolved just before
the request for leave. Consequently,
he was seeking leave to take custody
after becoming the legal parent of another's
child, and the employer was liable for
all damages flowing from the denial of
leave.
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- Employer
Failure to Designate Leave or Notify Employees
of Their Rights &
Responsibilities
Employers who fail to designate a leave
of absence as FMLA leave or who fail to notify
employees of their rights under the FMLA have
been held in some cases to have waived the
right to refuse to reinstate employees to their
positions at the end of leave. Nevertheless,
some courts have reacted negatively to the
notion that an employer's "technical" violation
of the regulations concerning designation and
notification of rights and responsibilities
can serve to give an employee additional substantive
rights. For example:
--Cox v. Autozone,
Inc. (M.D. Ala. 1998). A manager
at a retail store took temporary disability
leave due to complications related to
her pregnancy. Although the leave of
absence qualified under the FMLA, the
employer failed to designate it as such.
The manager stayed out of work for 15
weeks, receiving 13 weeks of short-term
disability (STD) benefits (the employer's
maximum) and 2 unpaid weeks of leave.
When she returned she was given the position
of assistant manager, with a lower salary
.The employer claimed that because she
exceeded her FMLA-protected leave of
12 weeks, it was not required to return
her to the position of manager. The employee
claimed that under the regulations, the
failure to designate her leave as FMLA
leave and to advise her that her right
to restoration would end after 12 weeks
meant that the employer had to return
her to the same or a similar position.
The Court found that the employee was
not entitled to any protections under
the FMLA because she exceeded the 12
weeks provided for under the statute,
which offers 12 weeks of job protection,
and no more. The regulations function
to provide the employee with more job-protected
leave when the employer fails to inform
employees that they are using up their
FMLA-covered leave. The Court found this
aspect of the regulations to be "inconsistent
with a fair reading of the FMLA." Therefore,
in this respect, the regulations are
invalid.
--Santos v. Shields
Health Group (D. Mass. 1998). After
15 weeks of leave in which an employee
never provided a medical certification
and never provided a definite return to
work date, she was terminated from her
employment. She sued her employer alleging
that it had failed to provided adequate
notice of her rights and responsibilities
(such as certification and providing an
expected return to work date). The court
held that even if we give the employee
the benefit of the doubt, and assume that
the employee had a serious health condition
that entitled her to FMLA leave, there
was no interference with her rights under
the statute. She was entitled to 12 weeks
of leave with job protection, and she received
it. She was indisputably unable to perform
her job 15 weeks after starting her leave,
so even if she had been notified of her
rights and responsibilities, reinstatement
would not have been possible after 12 weeks.
--Sherry v. Protection,
Inc. (N.D. Ill. 1997). An employee
asked for time off from work to care for
his father, who had been diagnosed with
terminal liver cancer. His first two requests
were denied, but a month later, he again
asked for and this time received time off
from work. His employer never designated
the leave as "FMLA leave" or
provided the employee with any information
about his rights and responsibilities under
the FMLA. The employee did not report to
work until two weeks after his father's
death. The employer demoted him, claiming
that the employee had "forfeited" his
rights under the FMLA by failing to return
to work for two weeks after the FMLA -covered
leave had ended (i.e., the serious health
condition of his father, which by definition
ended with his father's death). The Court
found against the employer, noting that
it was the employer's duty under the regulations
to provide the employee with written guidance
as to his rights and responsibilities.
Having failed to do so, the employer may
not penalize the employee for failing to
uphold any of the responsibilities that
should have been included in such written
guidance.
- Employee
Failure to Give Notice or Request Leave
Employees must give
employers enough information about the
need to take
FMLA leave that a reasonable
employer understands that the employee's need
for leave is due to an FMLA-qualifying reason.
--Szabo v. Trustees
of Boston University (D. Mass.
1998). An employee's pregnancy ended
in a miscarriage and she subsequently
informed her employer that she was "thinking
of taking some time off."
She then took two weeks off, but never told
her employer about her miscarriage. After two
weeks, still unaware of the miscarriage, her
employer contacted her to tell her that she
should return to work. The employee did return
to work at that time, at the same salary and
same position as before her miscarriage. Six
months later, the employee was terminated for
excessive absenteeism, including the two weeks
following her miscarriage. The employee sued
claiming that her absence due to the miscarriage
was protected by the FMLA. The employer defended
by pointing out that the employee never told
anyone at work she had had a miscarriage, and
that the employee had given insufficient notice
for the employer to apprehend that the employee
had requested or required FMLA leave. The Court
agreed, noting that the test was whether the
information given to the employer was "sufficient
to reasonably apprise it of the employee's
request to take time off for a serious health
condition."
Here, the employee's statement that she was
"thinking of taking some time off' was
not "sufficiently concrete or specific."
--Byers v. Toyota
Motor Manufacturing (E.D. Ken.
1997). An employee voluntarily admitted
himself into a hospital for treatment of
depression. He remained there for nine
days and did not call his employer until
the day after he left the hospital. Meanwhile,
pursuant to a no-call, no-show policy that
clearly stated that three days' absence
with no communication from the employee
was cause for termination, the employer
had terminated the employee after the third
day with no word from the employee. The
employee argued that the termination violated
the FMLA because his absence was due to
a serious health condition. The Court disagreed
and held that the employer was not required
to grant an employee FMLA leave "when
it does not learn of the need for leave
until after termination."
(emphasis in original) At the same time, an employee
need not request or desire a leave of absence
under the FMLA for the employer legally to place
the employee on FMLA leave. If the employee is
eligible for FMLA leave and cannot perform his
or her job due to a qualifying reason (for example,
his or her own serious health condition), the
employer may place the employee on a leave of
absence and count the time toward the FMLA allotment
of 12 weeks.
--Harvender v. Norton
Co. (N.D.N.Y. 1997). A pregnant
employee did not wish to stop working during
her pregnancy. Nevertheless, her physician
provided her employer with a note stating
that she could not work with chemicals
during her pregnancy. Working with chemicals
was a key part of the employee's job. The
employer placed her on FMLA leave. The
plaintiff argued that placing her on FMLA
leave involuntarily was a violation of
the Act. The Court found the lack of a
request for FMLA leave to be "irrelevant" and
granted summary judgment for the employer.
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- Evolving
Concepts of FMLA Violations
Some recent decisions
have provided welcome clarification of what
constitutes or does not constitute -an FMLA
violation.
--Gunnell v. Utah
Valley State College (lOth Cir.
1998). An employee claimed that she was
terminated for taking leave covered by
the FMLA. She was unable, however, to
provide evidence that her termination
was not due to other reasons, as the
employer asserted. The court emphasized
that "an employee who requests FMLA
leave would have no greater protection
against his or her employment being terminated
for reasons not related to his or her
FMLA request than he or she did before
submitting the request." Unless
the employee can show that the termination
was
"because of her FMLA request," the
court must conclude that "any reason for
terminating [her] employment would not involved
FMLA, and consequently that statute can offer
[the employee] no relief."
--Herman v. Princeton
City Schools (S.D. Ohio 1997).
An employer illegally "interfered" with
its employees FMLA rights when it failed
to advise them of those rights as required
by the DOL's regulations, including the
right to maintain health benefits at the
same cost to the employee. The employees
were entitled to reimbursement for the
employer's share of their health insurance
premiums, which they had paid during their
leave, as well as liquidated damages (i.e.,
double damages), as well as reasonable
attorneys' fees and costs. The Court also
issued an injunction against future interference.
See Harvender v.
Norton Co. (N.D.N.Y. 1997) above
for a description of a case in which putting
an employee on involuntary FMLA leave is not a
violation of the FMLA.
--Duckworth v. Pratt & Whitney (1st
Cir. 1998). An employee took FMLA-covered leave
in 1994. In December 1194, he was laid off.
On a form regarding his "rehire" status,
a supervisor wrote that his attendance was "poor." In
1996, the former employee applied for another
job at Pratt & Whitney but did not get
it. He sued, alleging that he did not get the
job because of the "poor" attendance
rating, which was based entirely on absences
that were protected by the FMLA. The employee
argued that this alleged basis for the failure
to rehire amounted to
"interference" with his FMLA rights.
The lower court dismissed the case on the grounds
that the FMLA protects the rights of "employees"
to be free from interference, but not former
employees. The First Circuit Court of Appeals
reinstated the case, reasoning that the term
"employees" should be read broadly
-in the spirit of other, similar cases decided
under Title VII -to include former as well as
current employees. Thus, the former employee
had a right to proceed with his suit and attempt
to prove that failure to rehire was illegal "interference."
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- Courts'
Rejection of Portions of the Department of Labor
Regulations
In some recent cases,
courts have rejected as invalid particular
sections of the U.S.
DOL regulations. For example:
--Seaman v. Downtown
Partnership of Baltimore (D.
Md. 1998). An employer told an employee
she could take FMLA leave even though
she did not meet the 12-month and 1250-hour
eligibility requirements. While she was
on leave, the employer contacted her
and told her that her job was "in
jeopardy ." The job was later eliminated.
The employee sued, citing a DOL regulation
that provides that once an employer confirms
an employee's eligibility for FMLA leave, "the
employer may not subsequently challenge
the employee's eligibility."
(See 29 C.F.R. § 825.110(d).) The court
found this section of the regulations to be
invalid because it "directly contradicts" the
eligibility requirements as set forth by Congress
in the statute itself. In short, Congress did
not intend to give employees who did not meet
the 12-month and 1250- hour requirements substantive
rights under the FMLA.
See Cox v. Autozone,
Inc. (M.D. Ala. 1998) above for
a description of a case in which a Court
found that the U.S. DOL regulation providing
employees with additional leave when employers
fail to designate a leave of absence as
FMLA leave were invalid because they were
inconsistent with the language of the statute
itself. Similarly, see Santos v. Shields
Health Group (D. Mass. -t 1998) above for
a description of a case in which the court
held (similarly to that in Cox) that a
technical violation does not render an
employer liable to an employee who received
her 12 weeks of leave but was unable to
return to work at the end of the job-protected
12 weeks.
--Cline v. Wal-Mart
Stores (4th Cir. 1998). An employee
with five day of paid vacation time accrued
sought to take FMLA leave. The employer
failed to inform an employee before the
commencement of his leave that his accrued
vacation time would be used up during his
FMLA leave. The Court found that the employer
must provide the employee with 12 weeks
of unpaid leave followed by five days of
vacation, in effect giving the employee
13 consecutive days off. Because the employee
had returned to work after the expiration
of 12 weeks but before the 13th week was
up, he was entitled to restoration to the
same or a similar job.
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- Other
Recent Cases
A federal court in Maine
has ruled that it is for the jury to decide
whether or not reinstatement to a position
with different duties and/or on a different
shift is restoration to an "equivalent" position
after FMLA-covered leave.
--Watkins v. J &
S. Oil Co. (D. Me. 1997). Before his first
FMLA leave, the employee was a station manager.
He was restored to that position after taking a
five-week leave following a heart attack in 1994.
Several weeks later, he suffered another heart
attack and underwent surgery .During his FMLA-
covered leave, the employer notified him that he
was being replaced as station manager. Over the
next few weeks, the employer offered him several
alternative positions. The Court found that, as
a matter of law, replacing the employee as station
manager in and of itself did not subject the employer
to liability. Beyond that, it was for the jury
to decide whether he had been properly restored
to "an equivalent" position.
Employers need not count
any hours except those actually worked toward
the 1250 hours needed to qualify for FMLA leave.
--Clark v. Allegheny
University Hospital (E.D. Pa. 1998).
An employee was terminated for excessive
absenteeism. He sued, claiming that many
of his absences were FMLA-covered due to
his own serious health condition and his
need to take leave to take care of his son,
who had a chronic serious health condition.
The employer argued that he had worked only
1,03.7 of the required 1,250 hours and therefore
had no rights under the FMLA. The employee
argued that both the time off due to his
own or his son's serious health conditions
and the time off due to disciplinary suspensions
should have counted toward meeting the 1,250
hour level. The Court disagreed with the
employee. Neither paid nor unpaid leave is
included in calculating the required hours
of service under the FMLA, the Court held.
Employers should count actual days worked,
and not medical leave, vacation days, holidays,
sick days, personal days, days of suspension,
or any other time off from work.
An employee's failure to
comply with an employer's request for a second
certification of the employee's alleged serious
health condition may permissibly result in the
denial of restoration to the same or a similar
position or termination.
--Diaz v. Fort Wayne
Foundry Corp. (7th Cir. 1997). The
employee asked for FMLA leave due to his
bronchitis. His physician then submitted
a certification form stating he needed FMLA
leave due to irritable bowel syndrome, hiatal
hernia, gastroesophageal reflux, and a duodenal
peptic ulcer. Understandably suspicious,
since none of these conditions appear to
be related to "bronchitis," the
employer asked for a second certification.
The employee failed to show up for the scheduled
examination for the purposes of the second
certification. The employee did not deny
that the company had "reason to doubt
the validity of the certification," as
required by the regulations, but failed to
appear for the required examination. " An
employee who fails to cooperate with the
second-opinion process under [the FMLA] loses
the benefit of leave under [the FMLA]." Once
the employee missed the appointment with
no explanation, he as " A WOL and could
not invoke the FMLA to avoid discharge." The "fit
for duty" certificate provision of the
FMLA recently came under scrutiny in a Massachusetts
case.
--Albert v. Runyon (D.
Mass. 1998). An employee took leave under the
FMLA due to clinical depression which she alleged
was the result of sexual discrimination and harassment
at her employer. After her treating psychologist
released her to work with the caveat that she
be free from discrimination and harassment, the
employer informed the employee that the psychologist's
certification was inadequate to enable the employer
to assess her ability to work, and that she had
to undergo an examination with a physician selected
by the employer. She refused, and when she was
not reinstated, she sued, alleging that her psychologist's
fit for duty note was enough pursuant to the
U.S. DOL regulations, which do not authorize
employers to seek second opinions for fit for
duty certifications. The court agreed, holding
that employers must rely upon the employee's
own treating health care providers' evaluations
regarding fitness to return to work.
--Porter v. U.S. Alumoweld
Co. (4th Cir. 1997). In contrast
to the Albert v. Runyon case
described above, the Fourth Circuit Court
of Appeals ruled that an employer could require
an employee returning from FMLA leave taken
due to back surgery to submit to an examination
prior to restoration. The key difference
appears to be that in the Fourth Circuit
case, the employer had grounds under the
Americans with Disabilities Act to request
such an examination.
Courts have fairly universally
found that the FMLA does not provide for compensatory
or punitive damages. Recently, however, a court
clarified that damages for the "loss of
job security"
could be included in the damages called "other
compensation" available under the FMLA :
--Lloyd v. Wyoming
Valley Health Care System, Inc. (M.D.
Pa. 1998). An employee returning from FMLA
leave was placed in a similar job with thesame
pay, but different supervisory duties. After
a workplace injury requiring additional leave,
the employee was placed in a third position
with the same pay but different duties. Six
months after the second return to work, the
employee's compensation scheme was altered
to a base salary with an incentive schedule.
The result of the switch was a decrease in
pay for the employee. He sued under the FMLA,
alleging that the phrase "other compensation"
in the FMLA's damages section included both compensatory
damages for alleged emotional distress and damages
for the loss of economic security represented by
the switch in compensation plans. The court disagreed
regarding emotional distress damages and held,
as have other courts, that such damages are not
available under the FMLA. The court went on to
hold in an apparent case of first impression that
damages for the loss of economicsecurity were available
if the employee could prove that he had acquired
the right to such security before he went out on
FMLA leave.
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IV.
Intersecting Legal Obligations
In addition to the FMLA
and FMLR, various other state and federal statutes
provide employees with rights to leaves of absence.
This section provides an outline of what those
other statutes require of employers and how they
interact with the FMLA/FMLR.
- The
Duty of Reasonable Accommodation Under the
ADA &
MHRA
The Americans with Disabilities
Act (ADA) and the Maine Human Rights Act (MHRA)
place a duty of reasonable accommodation upon employers.
An employee who is a "qualified individual
with a disability" has a right to reasonable
accommodations that are necessary to enable him
or her to perform the essential functions of his
or her position.
A leave of absence is not
automatically a reasonable accommodation. The leave
of absence must be reasonably calculated to enable
the employee to return to work and possibly with
the addition of other reasonable accommodations,
be able to perform the essential functions of the
job. Courts have consistently held that the ADA
does not acquire the granting of indefinite leaves
of absence. However, if an employee can perform
all essential functions while working a part-time
schedule, the employer may be required to allow
the employee to work part-time indefinitely.
Thus, the ADA and MHRA may
require employers to provide leave to employees
with disabilities even when they are not eligible
for FMLA or FMLR leave. Alternately, the ADA and
MHRA may require employers to provide more than
12 weeks of leave to employees with disabilities.
Another possibility is that a reasonable accommodation
would be to provide intermittent or part-time leave
for an extended period.
Each case should be analyzed
independently. Whether or not the provision of
leave above and beyond that which is required by
the FMLA or FMLR is a "reasonable accommodation" depends
on the facts and circumstances of each individual's
impairment, position, department, prognosis, and
so on.
If an employee with a disability
makes a request for time off from the job and the
employee makes it clear that the request for time
off is related in some way to the disability, employers
should treat the request as one for reasonable
accommodation. The request mayor may not entitle
the employee to leave under the FMLA/FMLR. Above
and beyond that, however, employers are not required
to grant the request for leave. The duty of reasonable
accommodation requires employers and employee to
engage in an informal and interactive dialogue
in order to determine the appropriate accommodations.
Thus, employers need not simply accede to a request
for more leave from an employee with a disability.
Unlike the FMLA/FMLR, which provide an automatic
right to leave if the employee is eligible, the
ADA and MHRA require only that the employer provide
whatever reasonable accommodation is necessary
to enable the employee to perform the job. If there
are two such reasonable accommodations and both
will enable the employee to perform the essential
functions, the employer may choose which accommodation
it wishes to implement.
We generally suggest a five-step
process for determining what is a reasonable accommodation
in any given situation involving a request for
accommodation from an employee with a disability:
1. The employer identifies
the essential functions of the job.
2. The employee and the employer
together identify all barriers to the performance
of the essential functions of the job caused by
the employee's disability.
3. The employee and the employer
identify all possible solutions or ways to eliminate
the barriers identified In Step 2.
4. The employer determines
which possible solutions are reasonable accommodations.
5. The employer selects and
implements one or more of the identified reasonable
accommodations.
Leave provided as a reasonable
accommodation under the ADA or MHRA generally may
be unpaid leave, although it may coincide with
benefits such as STD, LTD, workers' compensation
benefits, and so on.
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- Workers'
Compensation and the Absent Worker.
Maine's Workers' Compensation
Act (WCA) provides for wage loss benefits to employees
when they are not "able to work" due
to workplace injuries. This obligation exists even
if an employee is terminated for cause. However,
if an employee unreasonably quits a job or turns
down an offer of reasonable employment the employee
will likely be held to have forfeited all wage
loss benefits.
Workers' compensation is not
due until the worker has missed 7 days of work.
In addition, the employer has the right to direct
the employee's medical care for the first 10 days
of treatment. A health care provider should be
selected who is accessible and who is familiar
with the employer's workplace and light duty job
opportunities and policies. By using these tools,
a vast majority of claims that, before the 1993
reforms would have resulted in lost time, are now "nipped
in the bud" and processed without litigation
or controversy or even ill will.
In order to keep workers at
work, many employers have "light-duty" programs
for employees who have suffered workplace injuries.
Some employers go beyond what would be a "reasonable
accommodation" under the ADA or WCA, although
the most extreme examples of "make work" should
generally be avoided.
As a baseline, however, like
the ADA, the WCA requires that the employer effect
reasonable accommodations to return the injured
worker to the work force. Under
Section 218 of the WCA, this
obligation has a durational limit: 3 years from
the date of injury for an employer with over 200
employees and 1 year for smaller employers. The
employer must first reinstate the worker to the
original job, providing a reasonable accommodation
if needed. If that job does not exist -and the
employer need not keep it open then the employer
must reinstate the worker to another position that
is available and suitable. The employer need not
create work under the WCA. Interestingly, the sanction
for failure to accommodate is that the employer
is disqualified from exercising any rights it may
have to reduce or terminate benefits. Thus, if
no benefits are being paid, the remedy is meaningless.
The WCA's prohibitions against
discrimination are worth noting due to the large
number of cases litigated in this arena. The prohibition
against discrimination for having asserted a workers'
compensation claim is now found at 39-A M.R.S.A.
§353:
An employee may not be discriminated
against by any employer in any way for testifying
or asserting any claim under this Act. Any employee
who is so discriminated against may file a petition
alleging a violation of this section. * * *. If
the employee prevails at this hearing, the hearing
officer may award the employee reinstatement to
the employee's previous job, payment of back wages,
re-establishment of employee benefits and reasonable
attorney's fees.
This Section applies only
to an employer against whom the employee has testified
or asserted a claim under this Act. Discrimination
by an employer who is not the same employer against
whom the employee has testified or asserted a claim
under this Act is governed by Title 5, Section
4572, subsection 1, paragraph A."
The Law Court distilled this
test into one of whether a decision to terminate
"was rooted substantially or significantly in
the employee's exercise of his rights under the Workers'
Compensation Act." Delano v. City of South
Portland 405 A.2d 222 (Me. 1979); Lindsey
v. Great Northern Paper Co., 532 A.2d 151
(Me. 1987).
These claims are increasingly
prevalent today. One reason is that Section 353
still provides for attorney's fees while such fees
can no longer be recovered in ordinary claims for
indemnity or other benefits except as a percentage
under Section 325. Thus, in practical terms, a
worker who is partially disabled and has been terminated
may be more likely to obtain legal representation
than one who is merely partially disabled but not
terminated. Another reason is that these claims
are excluded from the standard workers, compensation
policy and so all damages and defense costs are
borne by the employer. Often a terminated employee
will join the employer in a claim for indemnity
or related benefits in the hope that the employer
will sweeten the settlement pot instead of having
to defend the case through formal hearing.
Some employees, however, cannot
be returned to work. Before deciding to terminate
such an employee, an employer should understand
that if the employee's whole body permanent impairment
exceeds 11.8% and if the partially disabled worker
is unable to obtain employment elsewhere, the insurer
may in theory be responsible for lifetime benefits
instead of the usual 5 year limit that applies.
Finally, employers should have a policy that governs
the absent worker, such as termination after 6
months of absence, although the employer should
understand that in some cases the policy should
be modified as an accommodation.
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- Gender
Discrimination (Title VII and the Pregnancy Discrimination
Act).
The Pregnancy Discrimination
Act is an amendment to Title VII of the Civil Rights
Act of 1964, intended to make clear that the prohibition
in Title VII against discrimination on the basis
of sex includes discrimination "because of
or on the basis of pregnancy, child birth or related
medical conditions." 42 U.S.C. § 2000e(k).
The statute does not create any independent right
to leave of absence or fringe benefits for pregnant
women: instead, it requires an employer to treat
women temporarily disabled because of pregnancy
or related medical conditions the same as it would
treat any other employee subject to a temporary
disability. This may include leaves of absence,
job modifications, or other accommodations, If
other employees who are temporarily disabled may
take leave with pay or with fringe benefits, women
who are temporarily disabled by pregnancy or related
conditions must be afforded the same opportunities.
Conversely, an employer may not require an employee
to take leave if she is physically able to continue
working.
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- Collective
Bargaining Agreements.
The employee rights established
by the FMLA supercede provisions of any collective
bargaining agreement (CBA) that contradict those
rights. For example, the FMLA expressly provides
that "a provision of a CBA that provides for
reinstatement to a position that is not equivalent
because of a seniority (e.g., provides lesser pay)
is superceded by FMLA."
If the CBA (or for that matter,
any employer plan) provides rights to leave than
the FMLA does, the FMLA does not require the extension
of FMLA rights to that period of leave. For example,
if a CBA calls for 16 weeks of leave, the last
four weeks of leave need not include health benefits
or the right to reinstatement to the same or an
equivalent position unless the CBA provides for
such benefits. Note, however, that it is very important
to communicate to the employee when notice is provided
regarding any changes that occur after the leave
converts from FMLA-covered to leave to discretionary
leave.
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- Employee
Benefits (COBRA & ERISA)
The taking of FMLA or FMLR
leave is not a "qualifying event" under
COBRA. which would trigger the notice requirements
of that statute. Provided that the employer is
not prepared to continue medical benefits during
any additional leave provided, an employee's failure
to return to work after an FMLA leave will most
likely be a qualifying event under COBRA. At that
point in time, the employer must send the employee
the required notification. A lapse in payments
on the employee's part during an FMLA leave will
also be deemed a qualifying event in most cases.
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- Military
Leave (USERRA & Maine's Military Leave Law)
- Federal Law
Under the federal Uniformed
Services Employment and Reemployment Rights
Act of 1994 {USERRA), no employer (defined
as any person or entity that pays wages or
has control of employment opportunities) may
discriminate against an employee because of
that employee's membership or participation
in federal or state military forces. An employee
may take a military leave for active duty,
reserve duty, or National Guard duty. In general,
an employee who takes a military leave of up
to five years must be reinstated to his or
her old job or a job of similar seniority,
status, pay, and benefits. There are important
exceptions to the five year limit, including
initial enlistment’s that last longer
than five years, periodic training duty, and
involuntary active duty extensions and recalls,
especially during a time of national emergency.
Under USERRA, employers
must restore returning service members to the
jobs that they would have attained had
they not been absent for military service.
This rule -- known as the "escalator
principle" --pertained under the previous
military leave statute as well. One important
limitation to the escalator principle is that
the returning employee must be qualified to
perform the duties of the position to which
he or she is entitled. If qualified, then the
service member must be placed in the position
he or she would have attained, or a position
with like seniority, status, and pay. If not
qualified, the employee is entitled to the
position in which he or she was employed on
the date of the commencement of the military
service, or to a position of like seniority,
status and pay.
If a returning employee
has a disability incurred or aggravated during
military service, and that disability renders
the employee unqualified, even with reasonable
accommodations, the employer has certain special
obligations. The employer must attempt to place
the disabled employee in any other position
which is equivalent in seniority, status, and
pay, and for which the disabled employee is
qualified, with reasonable accommodations if
necessary .If such a placement is not possible,
then the employer should place the disabled
employee in the nearest approximation in terms
of seniority, status, and pay. Additionally,
service members convalescing from injuries
received during service may have up to two
years to return to work.
USERRA offers a great
deal of protection in terms of employee rights
and benefits. While the employee on military
leave is not entitled to receive more benefits
than if he or she had maintained continuous
employment, the list of entitlements is long:
--the returning employee
is entitled to the seniority (and its attendant
benefits) that he or she would have accrued
if employed continuously;
--the returning employee who served for over
thirty days is entitled to coverage under the
employer's health plan for eighteen months,
to be paid for by the employee in a COBRA-like
schedule; those who serve for 30 days or less
are entitled to a continuation of a health
coverage as if there had no interruption of
employment;
--the returning employee is entitled to maintain
his or her accrual of benefits under any pension
plan; and
--the returning employee may not be discharged,
except for cause, within one year if the service
period was over 180 days; if the service period
was between 30 and 180 days, the returning
employee may not be discharged within 180 days.
- Maine Law
Maine law protects
members of any reserve military forces,
including the state
Military forces and the
reserves of the United States Armed Forces, from
suffering any harm as employees as the result
of their military obligations. Although the law
is in most cases superfluous, because USERRA
protects employees whom serve in all bona fide
federal or state military forces; there may be
times when the law do not overlap one hundred
percent.
Note that employers may request confirmation
from the Adjutant General, Camp
Keyes, Augusta, for members of any state military
forces or from any applicable reserve component
headquarters, of satisfactory completion of
an employee's military duties upon return to
civilian employment or immediately thereafter.
Employees who are still qualified to perform
the duties of their position must be reinstated
without loss of pay, seniority, benefits, status,
and any other incidences of advantages of employment
as if they had remained continuously employed.
Note that as with USERRA, the state law does
not provide for mere reinstatement to the same
position, but rather, it implements the escalator
principle.
Under state law, a leave of absence for military
training is not allowed to affect the employee's
right to receive normal vacation, sick leave,
bonus, advancement and other advantages of
employment that are normally provided to individuals
in the employee's particular position.
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V.
Tips and Pointers for Administering FMLA Leaves
- Written
Policies and General Administrative Issues
It is important to provide
employees with a complete and comprehensible summary
of their rights and responsibilities under the
FMLA. Well-informed employees will be less likely
to attempt to abuse your policy, but in my experience,
no more or less likely to attempt to take legitimate
leave. When employees request leave, inform them
in writing again and more specifically of their
rights and responsibilities. Provide Department
of Labor publications if available. Give the employee
another copy of the employer's FMLA policy at the
time he or she gives notice of the need for leave.
An added bonus will be the prevention of litigation.
Employees bring claims when they feel they have
been treated unfairly in some way. If the policy
on which discipline or termination is based is
clearly communicated to the employee, and the employer
follows the policy, the employer has done a significant
amount to prevent litigation.
- General Absenteeism
Policies
Being covered by the
FMLA does not mean that employers cannot
enforce policies aimed at controlling absenteeism.
At the same, courts have held, and the
law appears to be very clear, that absences
taken for a valid FMLA-qualifying reason
may not be counted against the employee
under a "no-fault" absenteeism
policy. Of course, this assumes that the
employee has given the employer appropriate
notice that leave is needed for an FMLA-
qualifying reason. The employee is not
required to say any "magic words" -such
as "FMLA" or "family medical
leave"
or "Family and Medical Leave Act." The
employee need only ask it clear that (1)
a leave of absence is being requested or
is required, and (2) there is likelihood
that the reason for the request or requirement
is an FMLA-qualifying reason. Despite some
recent decisions cutting against employees
on this issue, prudent employers will assume
that the DOL or the jury will give the employee
the benefit of the doubt when there is some
question as to whether the employee gave
notice of FMLA leave.
One of the keys to enforcing absenteeism
policies, of course, is to have one. Many
employers do not actually have a written
policy. While the policy should always contain
qualifiers that reserve to the employer the
necessary flexibility to comply with the
reasonable accommodation requirements of
the ADA, the MHRA, and workers compensation
laws, employers should in general have a
policy that describes when an employee is
subject to discipline or termination due
to absence from work.
--If you choose
to adopt a written absenteeism policy
that provides, for example, that a certain
number of unexcused absences will result
in discipline up to and including termination,
be sure to enforce it once it has been
promulgated; enforcement only in selected
cases may result in discrimination charges.
Even if you choose not to specify how
many absences, you must still be consistent
in the enforcement of your policy.
--Audit (or have legal counsel audit) all
written policies to insure that they comply
with the applicable laws and do not contradict
each other. While it is more common for
employers to offer too little leave, we
have performed such audits only to find
that employers are providing more leave
than necessary, especially when there are
separate "maternity leave"
and "FMLA leave" policies.
--Promulgate policies that are accurate,
easy to administer, and comprehensible.
Policies in language that employees cannot
understand will only add to employee anxiety
and confusion about leave policies. Providing
employees with clearly written policies
that tell them exactly what they are entitled
to removes uncertainty.
--Audit enforcement of the written policies,
to make sure that supervisors understand
the policies and are not granting more
leave than necessary Provide supervisor
training as necessary. Even-handed enforcement
will help with employee morale as well;
employees are often quick to believe that
their co-workers are "getting away" with
something.
--Centralize administration of all absenteeism
and leave policies to the human resources
department and train supervisors not to
handle leave requests on their own.
- FMLA Policies.
Many employers fail to realize that if the employer
has an employee handbook or any other collection
of policies that is normally distributed to employees,
which most employers do, it is mandatory under
the FMLA to have a written FMLA policy that is
included in the handbook or other collection of
policies. The FMLR does not have a similar
mandatory provision, but we still recommend having
a written policy for distribution to employees.
Assuming the employer has an employee handbook
or collection of policies, it must include a written
FMLA policy. The employer's written FMLA policy
should specify in some detail the employee's rights
and responsibilities under the FMLA and the employer's
policies for notice, certification, benefits during
leave, and return to work.
If the employer does not have a handbook or other
set of policies that is distributed to employees
on a regular basis, the employer must always provide
written guidance to an employee concerning the
general provisions of the FMLA and/or the employer's
FMLA policy whenever notice is given by the employee
that he or she needs to take leave for a potentially
FMLA-qualifying reason. This requirement is different
from the specific notice requirements listed in
Section V.C below. Such guidance may be disseminated
through a preprinted document such as the DOL 's
Fact Sheet on the FMLA, and/or in a document prepared
by the employer.
Specific Policy Content:
The employer should determine its position on substituted
paid leave policy (required or voluntary) and incorporate
this position into its written policy. The employer
should also specify whether the leave year will
be fixed or rolling.
Employers may wish to require advance notice of
foreseeable FMLA leave. As long as it is in the
handbook or policy, employers may require up to
30 days' advance notice from employees requesting
leave whenever practicable. If the employee fails
to provide 30 days' notice of a leave request (and
if the leave was foreseeable 30 days in advance),
the employer has the right to delay the commencement
of the requested leave until 30 days from receipt
of notice. The employer may always waive the notice
requirement. When a medical emergency arises, notice
will of course often be impossible and employers
cannot require it. (Note that notice may be given
by the employee, or if necessary, the employee's
spokesperson (e.g., spouse or other responsible
party), in person, by telephone, by telegraph,
or by facsimile.)
- FMLR Policies
Many employers covered by the Maine FMLR but not
the FMLA already have either a written policy
concerning leaves of absence, which provides
some predictability to employees. Others have
only an oral policy that changes over time
and context.
While some employers have decided to avoid written
policies in order to maximize "flexibility," others
have no written policies simply because they have
never gotten around to writing one. An employer
subject to state leave statutes --and in truth,
every employer -- should probably have a written
leave of absence policy. Without one, the employer
will find it difficult to comply with its obligations
under the law.1 For example; every Maine
employer is subject to the requirements of the
Maine Human Rights Act with regard to pregnancy
discrimination and reasonable accommodation (see Section
IV), or the Maine Workers' Compensation Act. The
best practice is to have a policy in place before
the legal necessity arises.
There is no question
that the notion of retaining "flexibility" can
be appealing. Uniform rules can seem "rigid"
or "inhumane" under certain circumstances.
It is important to remember that in some
cases, if an employer applies a rule too uniformly
it could lead to liability under the "reasonable
accommodation" provisions of various
statutes. Employers must be flexible enough
to explore possible accommodations involving
leaves of absence.
Family and medical
leave statutes are just one type of
law governing entitlement to leaves
and benefits. Other types of legally
mandated leaves include military leave,
and leaves required by "reasonable
accommodation" provisions of anti-discrimination
statutes as the Americans with Disabilities
Act or workers' compensation laws.
Employers may want to include information
about other leaves of absence they
provide, such as sick days, vacations,
funeral leave, jury duty leave, personal
days, etc., in their written policies
Moreover, many employers
believe that it is important to handle each employee's
leave request individually, and that rigid rules
are bad for morale.
On the other hand, uniform rules are easier for
human resources personnel to administer and for
employees to understand. A uniform rule is the
best insurance against violations of Statutes
mandating certain types of leave. A uniform policy
promotes ease of understanding, ease of administration,
and in some circumstances, may help avoid discrimination
claims.
The best practice
is to have a definite, written policy that
has built-in flexibility to cope with documented
special needs of employees. From a litigation
risk standpoint, it is necessary to balance
the risk of discrimination charges based
on disparate treatment with the risk of
discrimination charges based on a failure
to make reasonable accommodations to the
needs of employees with disabilities. Any
leave of absence policy should provide
that it is subject to the requirements
of federal and state law. Even if employers
choose to write their own employee handbooks
and leave policies, I recommend that they
have their legal counsel review their policies
periodically to insure compliance with
the ever-changing regulatory framework.
Employers should coordinate
fringe benefits programs with leave policies.
For example, if an employee will be paying
for any benefits during an unpaid leave of
absence, the employer and employee must make
arrangements for the employee to pay the required
premiums. These arrangements should be made
at the commencement of the leave, not later.
Note that the FMLA has a limited number of
specific options for how this may be accomplished
(described below), which employers subject
only to Maine's Family Medical Leave Requirements
may use as well. In general, an employer's
written policies should clearly state how various
fringe benefits will be handled during a leave
of absence. Clear policies are necessary both
to inform the employees of their rights and
to assist the administrators in properly administering
the program.
In short, employers must
evaluate their own administrative and business
needs and the potential needs of their employees,
always keeping in mind the statutory regulatory
framework to which the policy must comply.
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- Importance
of Designation & Notice
The employer's obligations
under the FMLA's designation and notice provisions
of the DOL's regulations once an employee has given
notice of the need for leave are probably the least
understood and most frequently violated provisions.
Below is an outline of the specific actions the
employer must take to provide employees with notice
that their rights or responsibilities under the
FMLA are being affected in some way. Note that
all these requirements must be carried out within
a "reasonable time after notice for leave
is given by the employee -within one or two business
days if feasible." Failure to designate
and provide notice in compliance with the FMLA
is technically a violation of the FMLA, and may
in some instances lead directly to liability, even
when the employee receives 12 weeks of leave with
health benefits intact!
- Designation of FMLA
leave.
Once the employer has
received notice from the employee that he
or she needs leave for a potentially FMLA-qualifying
reason, the employer has TWO DAYS within
which to designate the leave as FMLA leave
and communicate the designation to the employee.
The designation must
be communicated within two days in writing
or orally. If the communication is oral;
it must be followed up in writing no later
than the end of the current payroll period.
If the current payroll period ends within
one week of the day on which oral designation
occurs, the written designation may be given
no later than the end of the next payroll
period.
A failure to designate
has serious consequences. In short, the employer
may not count against the 12 weeks any leave
that occurs before the official communication
of the designation of the leave as FMLA leave.
For example, an employer forgets to designate
leave as FMLA leave until October 1, by which
time the employee has been out of work with
a legitimate serious health condition for
six weeks already. On October 1, a human
resources staff member telephones the employee
and tells her orally that the leave is counting
as FMLA leave. The human resources staff
member then follows up with a written designation
before the end of the current pay period.
This employee is entitled to 12 additional
weeks after October 1, for a total of 18
weeks.
Note that the employee
or his or her spokesperson need not specifically
mention the words "family medical leave" or
the FMLA in order to assert the employee's
rights under the FMLA. The only statement
required is that leave is needed.
- Requirement of Certification
by a Health Care Provider.
The employer must inform the employee of
the need to have a health care provider fill
out the certification form and of the deadline
for doing so.
- The Employer's Policies
Regarding Substituted Paid Leave and the
Right to Take Substituted Paid Leave Even
When Not Required.
The employee must specify whether there are
any conditions related to such substitutions
as well.
- The Employer's Requirements
with Regard to Payment of Health Care Benefit
Premiums. Employers should specify
that payments are required, how such payments
may be made, and the possible consequences
of a failure to pay (i.e., that coverage
will lapse).
- Fitness-for-Duty
Certificate Requirements.
If the employer plans to require a fitness-for-duty
certificate, it must so specify when notice
is given by the employee.
- Notice of Key Employee
Status.
If the employee is salaried (i.e., not
paid hourly), and in the top 10% of all. employees
within 75 miles of the specific employee's
worksite in terms of rate of pay, then the
employee is a key employee. The prudent employer
will always notify such employees that they
are "key employees"
and of the possible I consequences of this
status for restoration to their positions or
equivalent positions at the conclusion of their
leaves. Note that at the end of the leave,
it is too late. An employer may not retroactively
designate an employee as a "key employee" in
order to avoid restoration at that time.
- Right to Restoration.
Employers must inform employees about their
right to restoration to the same or an equivalent
position.
- Potential Liability
for Employer's Share of Health Benefit
Premiums If Employee Fails to Return to
Work.
If the employee does not return to work,
the employer is entitled to pursue and collect
the premiums that the employer paid during
FMLA leave if the employee's failure to return
to work was voluntary.
This is not the case if the failure to return
to work was the result of. circumstances beyond
the employee's control, e.g., the ongoing
nature of the employee's serious health condition,
a layoff by the employer, etc.
Other information
you may wish to provide, but which is
not legally required includes:
Clarification
in writing of the current "position" of
the individual who takes leave. Be
as specific as possible. If it is known
at the time the individual requests
leave that his or her job will be changing
during the leave period, clarify the
nature of the changes in writing at
the beginning of the leave.
The possibility
that if the job will be eliminated during
the leave period due to reasons other
than the individual's taking leave (e.g.,
a reduction in force).
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- Certification
& Communicating with Health Care Providers
Requiring certifications
from health care providers is critical to
the effective enforcement of FMLA leave.
Indeed, this is probably the single most
important thing employers can do to reduce
the number of unnecessary leaves of absence
under the FMLA. The Department of Labor has
devised a sample form that illustrates how
much information may be requested, including
the nature of the condition of the employee
or employee's family member, whether or not
it constitutes a
"serious health condition," whether
a leave of absence is necessary and if so,
its probable duration, and whether intermittent
or reduced schedule leave is necessary.
Intermittent Leave:
One area with a large
potential for abuse is the FMLA' s provision
for "intermittent leave." As with
any type of leave, the key to preventing abuse
of intermittent leave is requiring certification of
the need for it.
--Employers are
not required to allow intermittent leave
for the purpose of caring for a newborn
or a newly adopted/foster child. When
the FMLA leave is due to the serious
health condition of the employee or employee's
family member, however, the employer
must grant intermittent leave, as
long as the health care provider certifies
the medical necessity for such intermittent
leave
--The employer
may require periodic
recertifications
of the medical
need for intermittent
leave or a reduced
leave schedule
(no more often
than once a month).
--The employer may temporarily transfer
an employee who needs intermittent leave
to an alternative position that better
accommodates the employee's unpredictable
schedule, but may not lower the employee's
pay and benefits.
Communicating with
Employee's Health Care Providers
Some employers attempt to call their
employees' physicians in a good faith attempt
to get information when an employee has not
reported to work or when the employee has
not complied fully with the requirements
of certification or of periodic communication
with the employer. These attempts are worrisome
because they are often interpreted by the
employee as harassment or an attempt to obtain
sensitive and confidential information, or
both. Moreover, it is not in the employer's
interest to do this. It may constitute a
violation of the FMLA in some circumstances.
In fact, the FMLA is specific -and strict
-about what types of communication are permitted
between the employer and the employee's health
care provider.
If the employee has submitted
a filled out certification form filled out
by a health. care provider, employers may not
request additional information from the employee's
health care provider.
The employee may request clarification
and authentication from the health care
provider if the form has already been filled
out, but the employee must give permission
first. The only exception is that the FMLA
does specifically provide that the employer
may be in contact with the employee's health
care provider to the extent allowed by the
workers' compensation laws of the State.
Under no circumstances
should an employer contact a health care provider
if the employee has not submitted a filled
out certification form.
Seeking Clarification:
Sometimes health care
providers return the certification forms without
providing clear information that enables the
employer to make a definite determination as
to whether or not the employee or the employee's
family member has a qualifying serious health
condition. As noted above, in such cases, the
employer may not contact the health care provider
directly. If the employee gives permission,
a health care provider representing the employer
may contact the employee's health care provider
for the purposes of clarification and authentication.
In cases where the employee
does not give permission, or where the employer
doubts the validity of the medical certification
(whether or not clarification was sought),
the employer may seek a second certification.
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- Using
Second and Third Opinions
As noted above, if the certification seems suspect,
the employer does not have to accept an employee's
assertion- or even the health care provider's assertion
--that the employee is entitled to leave. In some
cases, entitlement is obvious, but in many cases,
it is not. Employers who require second and third
certifications in suspicious circumstances will find
that the other employees become aware that the employer
takes the certification process very seriously. In
the future, employees will be less likely to attempt
to take leaves of absence that are not legitimate.
If you are not convinced, you should not hesitate
to obtain a second certification regarding whether
or not an employee or the employee's family member
has a serious health condition. The standard is whether
or not the employer "has reason to doubt"
the doubt the validity" of the first certification.
The employer may choose which health care provider
will give the second certification, except that it
may not be a physician employed or contracted with
on a regular basis by the employer (unless the employer
is in a rural area with very few health care providers).
The employer must pay for any visits or other costs.
If the two providers disagree, the employer and the
employee must agree upon a third provider and abide
by that provider's assessment of whether the employee
or the employee's family member has a serious health
condition and how much leave is necessary .The employer
must pay for the third provider's services as well.
Note that the employee is provisionally entitled
to FMLA leave pending receipt of the second and/or
third certifications.
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- Developing
Forms that Work
We recommend using specific
forms for administering any FMLA/FMLR policy.
This allows human resources
staff ease of administration and insures that all
employees will be treated the same with regard to
their rights and responsibilities while taking leave.
The following list of recommended forms assumes that
the employer is covered by the FMLA:
Cover memorandum for
other forms.
--Acknowledge receipt
of leave request.
--Provisionally designate leave as FMLA-qualifying,
pending determination of eligibility and receipt
of valid certification.
--Explain other form requirements (formal request
for leave form, certification) and attach those
forms.
--Explain, in detail, the rights and
responsibilities of the employee under the
FMLA. Tell the employee what the consequences
will he of not complying with the certification
requirement, and any other requirements.
--Refer to employer's FMLA policy and how to
get one (or, better yet, simply attach another
copy).
Request for leave form.
--How much leave is
requested?
--What is the reason for leave?
--If leave is to care for family member, what
relation to employee?
--If employee has choice of using up paid leave,
what does employee choose to do?
--Expected return date?
--Does employee choose to continue benefits'?
--Leave room at base of request form for employer
to:
--Approve or disapprove
the leave
--Fill in how much vacation/sick time/etc.
has been accrued.
--Keep track of how much FMLA time is available,
how much will be left after expected return
date.
--Calculate the premium for employee benefits
during leave.
--Record any other information the employer wants
to communicate to itself or the employee about
his/her leave.
[Note that the U.S. Department of Labor (DOL)
has developed a sample form for the employer
to use when granting or refusing a request for
leave, but has not developed a form for employees
to use when making the request. The DOL's form
for granting or refusing requests appears as
Appendix D to 29 C.F .R. § 825, which you
can obtain at any law library, or from your legal
counsel. Nevertheless, I recommend creating your
own form.
Health care provider
certification form.
--Date of the commencement
of the serious health condition
--Its probable duration.
--The appropriate medical facts to describe
the condition
--If the employee requests leave to care for
a child, parent, or spouse, with a serious
health condition, the health care provider
should certify whether or not the employee
is needed to care for that individual
--If the employee requests leave because of
his or her own serious medical condition, the
health care provider should certify whether
or not employer may also require a certification
that the employee is unable to perform the
functions of the position of the employee's
job.
[The DOL has provided a sample form for these
purposes that appears as.
Appendix B to 29 C.F.R. § 825. Employers
may use this form or develop one of their own.]
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- Paid
versus Unpaid Leave
As noted above, FMLA
and FMLR leaves of absence are generally
unpaid. Nevertheless, in many situations,
the leave of absence will be entirely or
partially paid.
When the employer carries short-term disability
coverage (STD), the employee may qualify under
the STD policy for benefits during an FMLA/FMLR
leave of absence.
Employers may require employees to use
accrued paid leave during FMLA leave, except
that employers may not require employees to
use any type of accrued paid leave for any
purpose that is inconsistent with the ordinary
purpose of such accrued paid leave. For example,
if under an employer's general policies, employees
are not allowed to use "sick days",
to care for a sick family member, but are required
to use their' vacation days, the employer may
not require the employee to use
up accrued sick days in order to care for a
child, spouse or parent with an FMLA-qualifying
serious health condition. Those sick days will
be intact when the employee returns from FMLA
leave. At the same time, when employers do
not require employees to use up accrued
leave, the employee may always choose to use
up paid leave if they choose to do so.
Whether the employer requires the use of accrued
paid leave or the employee I chooses to use
up such leave, it is called "substituted
paid leave."
Substituted paid leave always runs simultaneously with
FMLA leave. Similarly, see Section IV for a
description of how workers' compensation leaves
and reasonable accommodation leaves may count
against the FMLA 12-week (or FMLR 10- week)
maximum.
When an employee is on substituted
paid leave, his or her health benefits should continue
as always. When an employee is on unpaid leave, in
order to continue health benefits during leave, the
employee must pay the premium that is normally deducted
from the paycheck. Each employer should develop a
system for employees on family and medical leave
to pay for their normal share of health benefits.
It is important to note in any employee handbooks
or written family and medical leave policies what
that system will be.
During any part of FMLA leave which is substituted
paid leave, the employer may continue the practice
of deducting benefit payments from the paycheck.
During the normal unpaid FMLA leave, however, as
long as they provide advance written notice to
the employee, employers may require employees to
pay for their share of the premium payments in
any of the following ways:
--Payments due at the
same time as if by payroll deduction;
--Payments on the same schedule (but not necessarily
the same amount) as if made under the employer's
COBRA plan;
--Prepayment pursuant to a cafeteria plan at
the employee's option;
--Payment pursuant to the employer's existing
rules for payment by employees on "leave
without pay," provided that such rules do
not require (1) prepayment, (2) payment of higher
premiums than if the employee had continued to
work instead of taking leave, or (3) more of
the employee taking FMLA leave than of employees
who take other forms of unpaid leave; or
--Payment according to another system voluntarily
agreed to between the employer and the employee
which may include prepayment, such as by increasing
payroll deductions when FMLA leave is foreseeable.
Except in circumstances
beyond the employee's control, if an employee
fails to return to work after taking an FMLA
leave, the employer is entitled to recover its
share of the health insurance premiums that it
paid for the period of the employee's unpaid
FMLA leave.
"Circumstances beyond the control" of
the employee include the continuation, recurrence,
or onset of a serious health condition of the employee
or the employee's family member, which would otherwise
entitle the employee to FMLA leave, for which the
employer may require certification.
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- Choose
a "leave year" and use it consistently.
Eligible employees are entitled
to twelve weeks of family and medical leave each
year .The employer must determine what constitutes
a "year" from among the following four
options:
--the calendar year;
--any fixed, 12-month period designated as the
employer's "leave year," such,
as the employer's fiscal year or a year starting
on the employee's
"anniversary" date;
--the twelve-month period measured forward from
the first day of an employee's FMLA leave;
--a "rolling" twelve-month period measured backward from
the date an employee uses any FMLA leave.
Disadvantages of using a non-fixed
leave year (the second two options listed. above)
include the necessity of keeping detailed records
for each employee and contusion among both human
resource personnel and employees eligible for FMLA
leave. Disadvantages of using a fixed leave year,
such as the calendar or fiscal year, include the
possibility that an employee may take up to twenty-four
consecutive weeks of leave. In other words, if
the leave year begins on January 1, the employee
could schedule FMLA leave for the twelve weeks
prior to January 1, using all his leave for that
year, and then schedule FMLA leave for the twelve
weeks immediately following January 1, using all
his FMLA leave for the next year. In this way,
the employee would be on leave from October through
the end of March. Each employer must decide what
option works best for its operations and its employees.
Again, the key to making the policy work is choosing
one option and using it consistently.
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