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Wednesday, November 20, 2019

BY ROBERTA PIKE

legal ease One of the greatest challenges that every business FACES today is keeping abreast of the innumerable laws, rules, and regulations that govern how we operate. These federal, state, and local laws are frequently complex and hard to understand, and there are often significant penalties for getting things wrong, even unintentionally.

The Family and Medical Leave Act (FMLA) is one of the most important employment laws enacted in recent times; however, due to its complexity, it is also a never-ending source of confusion and frustration for employers and employees alike. This article will hopefully clear up much of the confusion, and provide readers with an overview of the rights and obligations each have under the FMLA.

What is the FMLA?
In a nutshell, the FMLA is a federal law that permits “eligible” employees to take up to 12 weeks of unpaid, job-protected time off in order to care for themselves or a close family member without fear of losing their job or their group health insurance coverage (up to 26 weeks can be used when caring for a family member in the military).

Are there other laws similar to the FMLA?
Many states have enacted family and medical leave laws of their own. While these laws mostly contain provisions similar to those of the FMLA, they sometimes offer greater benefits or protections. For example, in contrast to FMLA’s unpaid leave, certain states have enacted laws that provide paid family and medical leave. It’s imperative that you check with your local Department of Labor for additional information.

How are employees informed of their rights?
Employers are required to post a notice explaining the FMLA’s provisions and procedures for filing a claim. Although the notice may be obtained from the Department of Labor’s (DOL) website, the DOL may impose a civil monetary penalty of $110 if an employer fails to post the notice. Employers are also required to provide information about the FMLA in their employment manual, but in the absence of one, they must notify new employees of the FMLA’s provisions at the time of hire.

Who is an eligible employee?

Three conditions must be met to be eligible for benefits:
• The employer must have 50 or more full- and/or part-time employees who work within a 75-mile radius.
• The employee must have been employed for at least 12 months.
• The employee must have worked for at least 1,250 hours during the 12-month period immediately preceding the leave.

How much leave is an eligible employee entitled to under the FMLA?

Eligible employees are allowed up to 12 workweeks of leave in a 12-month period for the following:
• The birth and care of a child within one year of birth;
• Placement of a child for adoption or foster care with the employee and childcare within one year of placement;
• Care for the employee’s spouse, child, or parent who has a serious health condition; and
• Attending to a serious health condition that makes the employee unable to perform the essential functions of the job.

What are the employee’s notice obligations?
Employees are required to give at least 30 days’ notice if the need for FMLA leave is foreseeable. If the need was unplanned or unexpected, then the employee should provide as much notice as is both possible and practical under the circumstances. There may be situations where the employer learns an eligible employee needs FMLA leave, but the employee hasn’t provided formal notice (e.g., the employee has been hospitalized unexpectedly). The employer should then dispense with formalities, regard itself as being on notice of the employee’s need, automatically designate the employee’s absence as FMLA leave, and notify them accordingly.

What are an employer’s notice obligations?

If an employee asks to take time off for a reason that is covered by the FMLA, the employer must respond within five days. Note that the employee doesn’t have to say “I need FMLA leave” or anything to that effect. In fact, the employee doesn’t have to specifically mention the FMLA at all: It is the employer’s obligation to identify whether FMLA covers the leave request, and if so, inform the employee of their right to take FMLA leave. Thus, if an employee simply walks in and says, “My wife had to have her appendix removed last night, and I need to take a week off to care for her,” it is the employer’s obligation to (a) identify the condition as a serious health condition affecting an immediate family member (an event covered by the FMLA); (b) determine whether the employee is “eligible”; and if so, (c) inform the employee of his entitlement to take up to 12 weeks of unpaid, job-protected FMLA leave.


When an employee’s FMLA leave ends, the employer must reinstate the employee to the position they held at the time leave was taken.”

If an employer fails to inform an employee that leave has been applied toward the employee’s FMLA entitlement, it may usually do so retroactively. However, under certain circumstances, if an employer fails to properly designate FMLA leave and within 12 months another need for it arises, the first leave period might not be counted for FMLA purposes, entitling the employee to take a full 12 weeks of leave for the second period if the employee can show he was prejudiced. Here’s an example: John took off a week in February to care for his father following a surgical procedure, but John wasn’t told that the week would be counted toward his FMLA entitlement. Later in the leave year, John’s wife gives birth and John wishes to take off 12 weeks to help care for the child. If John can establish that he was not informed that the week in February counted as FMLA leave so he could have made other arrangements, he would be entitled to take the full 12 weeks of FMLA leave following his child’s birth.

If an employee is approved for FMLA leave, the employer must notify the employee in writing of any obligations the employee will be required to meet. For example, the employee must be informed if they will be required to submit medical certification or other proof that documents the need for the leave, if medical certification will be required prior to the employee’s return to work, and if the company permits or requires the employee to substitute paid leave (such as accrued vacation days).

Must leave be taken all at once?
Generally, no. Employees are not required to take all 12 weeks at once, and employers cannot require that employees take their leave in increments of more than one hour. For example, if an employee needs an hour to take her husband to physical therapy, you cannot require that she take a half-day of leave. The one exception is employees caring for a newborn or newly adopted child. Technically, their employer may require them to take their 12-week entitlement all at once, though many employers permit these employees to take intermittent leave, as well.

Is FMLA leave paid or unpaid?
FMLA leave is unpaid; however, an employee may choose to substitute accrued paid leave (e.g., personal or vacation days), provided the employee complies with the company’s terms and conditions of any applicable paid leave policies. Alternatively, the employer may require using accrued paid leave first. If paid leave is substituted for unpaid FMLA leave, the two types run concurrently.

For example, if an employee who has accrued two weeks of paid vacation takes 12 weeks of FMLA leave, the employee can request (or the employer can require), that the first two weeks of FMLA leave count towards the employee’s vacation entitlement. The employee is paid his usual salary minus normal deductions (including his regular contribution toward health insurance coverage) the first two weeks, while the remaining 10 weeks are unpaid (the company pays the full cost of the health insurance). Most employers prefer that paid leave and FMLA leave run concurrently. Using the above example, if the entire 12 weeks of leave was unpaid, the employee could return from leave and then decide to use his two weeks of paid vacation shortly thereafter, resulting in a 14-week absence rather than 12.

Note: California, Washington, New Jersey, Rhode Island, and the District of Columbia have laws that provide paid family leave for employees. If your company is in one of these areas, you should contact your local DOL to ensure that you are in compliance.

Who pays the costs associated with health insurance coverage?
The employer is required to maintain the group health insurance of an employee on FMLA leave under the same terms and conditions as if they had not taken leave, and the employee must continue to make any normal contributions toward the cost of coverage. If paid leave is used concurrently with FMLA leave, the employee’s contribution is deducted from their earnings as if they were working. However, if the employee is on pure FMLA leave (unpaid), they must pay the employer the contribution to maintain coverage.

If the employee does not return to work after FMLA leave, the employer may seek to recover the cost of providing medical insurance to the employee, so long as the reason for not returning is unrelated to the reason for taking leave. If the employee found and accepted a better-paying job while she was on leave, you can require her to repay the cost of coverage. If she isn’t returning because she’s too ill to work, however, you cannot recover the health insurance premiums paid on her behalf.

Is the employee entitled to reinstatement?
Generally, when an employee’s FMLA leave ends, the employer must reinstate the employee to the position they held at the time of leave, or to a comparable position with equivalent pay and benefits. While there are exceptions, claims that the employee’s position was eliminated are typically scrutinized, and care must be taken whenever the termination of an employee on leave is contemplated.

So, what are the exceptions? First, the employer may eliminate the position of an employee on FMLA leave if it can demonstrate it would have done so even if the employee had not taken leave. For example, if a dispatcher took FMLA leave and then the company decided to outsource its dispatching and eliminated all positions in the department, the employee would not be entitled to reinstatement. Second, employers are not obligated to reinstate “key” employees under certain circumstances. Key employees are salaried workers among the 10 percent most highly paid workers within a 75-mile radius. The employer must demonstrate that reinstating them would result in “substantial and grievous economic injury” to the company, and that this was conveyed to the employee when leave was taken. An example would be if the company controller needed to take FMLA leave for 12 weeks, and it would be impossible for the business to function in their absence. These situations are rare, and this exception should only be relied upon if it genuinely applies.

Summary
A step-by-step approach, as outlined here, represents the best way of ensuring compliance with the FMLA and similar leave laws. The FMLA and its state law counterparts are complex but not insurmountable. If you’re unsure of your company’s obligations when a leave situation arises, you should consult with your benefits administrator or attorney for guidance. [CD0216]

Disclaimer: The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.

Roberta Pike is a partner with Pike & Pike Law Firm in Bellmore, N.Y. She may be reached at rcp@pikeandpike.com.

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