Twenty Things You Need To Know About the FMLA

TWENTY THINGS YOU NEED TO KNOW ABOUT THE FMLA
You May Know What the FMLA Says… But Do You Know What it Means?

The Family Medical and Leave Act (FMLA) was enacted in 1993 to provide a modicum of job security to employees who require time off from work because of their own illness, or to care for infirm family members, or to care for newborn infants. It was Congress’ stated goal to balance the needs of employees and their families against the legitimate interests of their employers. Congress chose to do so by mandating that employers provide employees with unpaid leaves of absence coupled with guaranteed reinstatement, in limited, closely-defined circumstances.

Whether or not you agree with the FMLA, it remains an entrenched business reality that must be dealt with -- the financial consequences of non-compliance can be severe.

And there’s the rub. Like so many employment (and other) statutes that seek to change the way we live and conduct business, the greatest challenge is not necessarily implementing what the law requires – rather, in many cases, the greatest challenge is figuring out what the law requires.

What the Statute Says is Just the Beginning

Most often, this difficulty results from the fact that, as a practical matter, the words of a complex statute like the FMLA can never envision and resolve all of the day in, day out issues that those who live with the statute will have to face. The statute itself is, necessarily, a skeletal starting point, and it is left to the courts and agencies to flesh out the “real world” impact of any new law through evolving decisions and regulations.

In the case of the FMLA, this means that employers become the statute’s involuntary proving grounds. Employers are made to confront situations for which the FMLA does not provide specific direction, and they have to make decisions. Employees, in turn, will challenge their employer’s decisions, leading to court and agency rulings. If the employer guesses wrong, it pays; if not, it lives to fight another day. Through this somewhat random, frequently unjust process, a body of rulings and interpretations emerges, filling in the holes in the statutory scheme, defining terms, and providing guidelines for future conduct.

Employers must constantly monitor this evolutionary legal process. As the saying goes, those who do not learn from history are doomed to repeat it. Or, translated into business terms, it’s always useful to learn from your own mistakes, but it’s a lot easier and cheaper to learn from the mistakes of others.

The FMLA Basics

Here’s what the FMLA statute itself – before court and agency interpretations -- tells us.

Under the FMLA, an “eligible” employee may take up to 12 work weeks of leave during any 12 month period, for any one of the following reasons:

Employees are "eligible" for FMLA leave if they: (1) have been employed by a “covered" employer for at least 12 months, which need not be consecutive; (2) had at least 1,250 hours of service during the 12-month period immediately before the leave started; and (3) are employed at a worksite where the employer employs 50 or more employees within 75 miles.

During FMLA leave, an employer must maintain the employee's existing level of coverage under a group plan.

And, very significantly, at the end of FMLA leave, an employer must reinstate the employee into the same or an equivalent job. (There is a limited exception: where reinstatement will cause “substantial and grievous economic injury,” an employer may refuse to reinstate certain “key” employees, provided, among other things, that the employer notified the employee of his or her “key” status and the reasons for denying reinstatement.)

The bare language of the FMLA raises more questions than it answers. Consequently, over the years, our clients have peppered us with innumerable “what happens when…,” “what about this…” and “how do I tell if…” questions, as they struggled to figure out what they were supposed to do with the FMLA in the real world of employer-employee relations.

Ten years ago, all we (and anyone else) could do was take our best guess. Now, we have a mountain of court decisions and agency regulations and rulings on which to draw. The FMLA has more than a decade under its belt, and in many instances we can now replace guesswork with real answers.

Our experience tells us that this information is most useful if it is distilled into a format that helps employers understand these legal principles in context. For that purpose, we offer our “top twenty” list of FAQ’s for the FMLA – twenty questions and answers that, when properly comprehended and applied through appropriate employee training, can save employers millions of dollars in potential damages.

You won’t have to worry about FMLA leave, but you will still have a host of other overlapping requirements you will need to consider.

First, various states and municipalities have enacted their own unpaid leave statutes and ordinances, many of which require that employers with less than 50 employees within a 75-mile radius of a single location grant unpaid leave to certain classes of employees. Some grant more than 12 weeks of leave, and other, additional benefits. You must stay apprised of those local requirements.

Second, as is discussed below, in many circumstances an employee with an ADA “disability” may be entitled to unpaid leave as one of the “reasonable accommodations” the ADA mandates, whether or not the FMLA applies.

The upshot is that managers and HR professionals who deal with employees making requests for leave, whether or not their employer maintains a roster of 50 employees, need to be carefully trained in order to avoid a response that can trigger a series of liabilities.

The FMLA requires that the employer notify the employee in writing that an absence is being designated as FMLA leave. This is an extremely important, and frequently overlooked requirement. Unless the employer provides this notice, the employee’s leave may not be counted against his or her 12 week FMLA allotment, resulting in the employee gaining an entitlement to additional unpaid leave.

With proper planning, a notice procedure that is compliant with these requirements can be incorporated into the standardized operating procedures of most employers.

Yes. Employers may require that the employee use, accrued paid leave to cover some or all of the FMLA leave the employee wishes to take. That way, you won’t have to deal with 12 weeks of unpaid leave on top of an employee’s accrued right to paid leave. But note: the employee must first be notified in writing that his or her paid leave will be counted against the FMLA leave. Again, standardization and implementation of FMLA employment policies will be the key.

Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave. But, again, you must properly notify the employee in writing of the designation.

It can. FMLA leave and workers' compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and, again, the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.

Under the FMLA, an employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider. An appropriate form must be used – consult with competent counsel or an HR professional. It is not sufficient to place the medical certification requirement in a manual or handbook; a specific request for this certification must be directed to the employee. The employer must allow the employee at least 15 calendar days to obtain the medical certification.

Caution: the ADA severely restricts an employer’s right to make medical inquiries of an employee seeking an ADA accommodation. A proper FMLA request for a medical certification – i.e., a request made in response to a request for leave, using the proper FMLA forms, without further inquiries -- will not violate the ADA (side note: there are some qualifications pursuant to HIPAA). But if the employee’s request is, in fact, a request for an ADA accommodation (and it is often very difficult to tell the difference, as discussed below), be very careful. Those fielding requests for leave or other accommodations must be properly trained so that the correct procedures are triggered.

Yes, in most cases. Usually, an employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider, and if the two health care providers disagree, there is a procedure to obtain a third, binding opinion. There are specific rules that govern this procedure. Consult competent counsel.

An employer may ask an employee who is on leave reasonable questions to confirm whether the leave qualifies for FMLA purposes, and may require periodic reports on the employee’s status and intent to return to work after leave. An employer can also trigger the “second opinion” procedure discussed above. But there are specific rules that pertain to medical inquiries that must be respected – be careful, and make sure the people doing the inquiring know the do’s and don’ts.

Employers with established policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave – which is another example of the importance of a well-crafted policy manual. Otherwise, the employer may not restrict an employee’s activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.

Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12 month period" no longer have FMLA protections of leave or job restoration.

Caution: the ADA (and an employer’s own short term disability policy) may mandate a different result. Consult competent counsel.

Under the FMLA, an employee is entitled to return to the same position or to an equivalent position. However, if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condition, the FMLA does not require the employer to reinstate the employee into another, less demanding job.

Caution: the ADA (and an employer’s own short term disability policy) may mandate a different result. Consult competent counsel.

The FMLA requires that employees be restored to the same or an equivalent position. If an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work. The FMLA leave may not be counted against the employee. For example, if an employer offers a perfect attendance bonus and the employee has not missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon returning from FMLA leave.

On the other hand, the FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority. For example, an employee on FMLA leave might not have sufficient sales to qualify for a bonus. The employer is not required to make any special accommodation for this employee because of the FMLA. The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave (as appropriate) are treated.

Typically, employees do not label their requests for your convenience – they do not walk in and announce, “I need an ADA accommodation,” or “I’d like to request FMLA leave.” Instead, they tell you, “I need some time off to get an operation,” or “I have to leave early on Fridays to go to therapy,” or “My mother just had a stroke and I have to care for her.”

The managers who initially deal with the employee, and those who make the eventual decision, must be well trained to ask the right questions, and not the wrong questions, in order to decipher whether the employee is asking for an ADA accommodation, FMLA leave, or both. If the employee is not eligible for FMLA leave, or his or her request pertains to an issue that falls outside the FMLA (for instance, it relates to a sick in- law and not a parent), you will know to view the request through an ADA filter. If, on the other hand, the employee makes plain that he or she wants leave and the request otherwise qualifies, it may be best to stop further inquiries and begin FMLA procedures. Keep in mind that you cannot dilly-dally in deciphering the employee’s communication -- generally, an employer must get the FMLA paperwork to an employee making an FMLA request within one to two days.

In the context of this article, all that can be said is this: the development and implementation of appropriate forms and procedures, coupled with “real world” training, is your best defense against making mistakes in this very troublesome area.

The FMLA defines a "serious health condition" as an illness, injury, impairment, or physical or mental condition that involves any of the following:

Most courts take these definitions literally. For instance, in a recent case, a federal court dealt with a parent who sought FMLA leave to care for a child with ADD and ADHD. The child was certified as “educable mentally impaired,” and took medication for impulse control. The court, however, ruled that these conditions were not serious enough to merit FMLA leave. The court noted that the child could still attend school, and could still do what children do – bike, swim, play games, and so on. As such, the child required no more supervision than a younger child with no disabilities.

Note that a “serious health condition" is not necessarily the same as an ADA "disability." An ADA "disability" is generally an impairment that substantially limits one or more major life activities. Some "serious health conditions" under the FMLA may also be ADA disabilities, but others may not be – for instance, a routine broken leg may well be a “serious health condition” but will most likely not qualify as an ADA “disability,” since it does not impair a major life activity as the courts which have interpreted the ADA usually define that standard.

Employees are entitled to such leave – i.e., one day a week, or 4 hours a day -- but only in certain circumstances.

Intermittent/reduced schedule leave may be taken when medically necessary to care for a seriously ill family member, or because of the employee's serious health condition. In addition, intermittent/reduced schedule leave may be taken to care for a newborn or newly placed adopted or foster care child, but only with the employer's approval.

Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer's operations, subject to the approval of the employee's health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee's regular job.

Caution: Under the ADA, a qualified individual with a disability may work part-time in his/her current position, or occasionally take time off, as a reasonable accommodation if it would not impose an undue hardship on the employer. If (or when) reduced hours create an undue hardship in the current position, the employer must see if there is a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship while working a reduced schedule. An ADA accommodation of this nature is not restricted to 12 work weeks, and there is no statutorily guaranteed right of reinstatement, as exists under the FMLA. This is a complex area of statutory interaction. Consult competent counsel.

The FMLA provides that employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable; notice "as soon as practicable" when the need to take FMLA leave is not foreseeable ("as soon as practicable" generally means at least verbal notice to the employer within one or two business days of learning of the need to take FMLA leave); and, where the employer was not made aware that an employee was absent for FMLA reasons and the employee wants the leave counted as FMLA leave, timely notice (generally within two business days of returning to work) that leave was taken for an FMLA-qualifying reason.

Covered employers must take a variety of steps to provide information to employees about their FMLA rights. A full explanation is beyond the scope of this article, but it encompasses posting certain notices, including information in handbooks or, if none exist, in other written materials, providing notices designating leave as FMLA leave, providing certain notices if the employer seeks medical certification from the employee, providing notice of the employee’s right or obligation to use accrued paid leave in lieu of FMLA leave, notice of co-pay responsibilities on group health insurance… and more. Make certain your procedures are up to speed.

To maintain an employee’s privacy, an employer would be well advised to keep a single confidential medical file, separate from the usual personnel file, containing both FMLA and ADA medical information. Employers must understand the confidentiality requirements, under the ADA and FMLA regulations as well as other bodies of law, that apply to this information. For example, employers may not give supervisors and managers unlimited access to an employee’s medical files, although employers may give supervisors and managers information concerning necessary work restrictions and accommodations.

No. This is another, crucial distinction between the ADA and the FMLA. Under the ADA, an employer has the right (in fact, the obligation) to engage the employee in a dialogue respecting a reasonable accommodation, and in that context the employer may offer the employee alternatives to leave from work. However, under the FMLA, if the individual is "eligible" for leave, he or she has the right to take a leave of absence of up to 12 work weeks in 12 months, even if he or she could continue working with an effective reasonable accommodation. While the FMLA does not prevent an employee from accepting an alternative to unpaid leave, the acceptance must be voluntary and uncoerced – be careful about the way in which you discuss these alternatives.

In the event of a violation, the FMLA authorizes an award of damages – not only against the employer, but also against responsible individuals. The damages can include lost wages and employment benefits (for instance, if an employee is fired for taking leave he or she had a right to take under the FMLA and is out of work for an extended period). In addition, the employee will be entitled to attorneys fees, and may be able to recover certain “liquidated damages” that can, in essence, double the employee’s recovery. The employee can also seek reinstatement and promotion.

But while the FMLA does not itself provide “bonanza” damages for emotional distress and punitive damages, a failure to comply with the FMLA can still lead to a multi-million dollar verdict. This is because employees who suffer an FMLA violation will join other, related claims in the FMLA lawsuit, all of which will be predicated on the FMLA violation. For example, a hospital employee in Illinois claimed that his employer improperly terminated him for taking FMLA leave. The employee coupled his FMLA claim with a state law claim for intentional infliction of emotional distress, based on the FMLA issue. The result: a federal court jury in Chicago awarded $11.65 million in damages, $10 million of which was punitive damages. In addition, two of the plaintiff’s supervisors were found to be individually liable for $200,000 in compensatory damages, and $250,000 in punitive damages.

This month’s What Do You Think? concerns an employer’s right to conduct investigations of workplace incidents, such as claims of sexual harassment, embezzlement or threats of violence.

For many years, the Federal Trade Commission interpreted a seemingly-unrelated statute, the Fair Credit Reporting Act of 1996 (FCRA), to restrict an employer’s right to investigate such workplace matters. According to the FTC’s rather curious interpretation of the FCRA, if an employer used a third party to conduct the investigation, the employer was required to treat the effort as if the employer were obtaining a credit report on the employee. That meant that the employer would have to (1) give the employee under scrutiny advance notice of the investigation; (2) obtain the employee’s consent; and (3) provide the employee with the third party’s investigative report.

After years of political maneuvering, in December 2003, President Bush signed into law the 2003 Fair and Accurate Credit Transactions Act, which became effective March 31, 2004. In essence, this legislation trashed the FTC’s prior rulings as they applied to employer investigations of employees, except in instances where an employer investigates an employee’s or applicant’s creditworthiness, credit standing or credit capacity.

The result is this: by virtue of this new Act, employers do not have to give employees advance notice that they are being investigated for workplace violations, they do not have to obtain the employee’s consent to the investigation, and they do not have to provide a full copy of the investigative report.

Will that lead to more accurate and complete investigations? Or will it sow the seeds for abuse and fabrication? Should employers have the unfettered right to investigate their employees, or should the process be subject to statutory checks and balances? What do you think? Click here to give us your point of view. Click here to give us your point of view.

Next month we will share your input (but we will never disclose your name, e-mail address or other identifying data without your permission).

Our March 2004 What Do You Think? addressed the recent Supreme Court ruling permitting employers to discriminate in favor of older workers. We asked the following question: “Should employers be permitted to discriminate against younger employees, even if they are more qualified, based solely on their age?”

“It seems to me that the anti-discrimination laws were written so that it was an individual’s ability to do the job that was the most important consideration for employers. Why should anyone’s age be a factor at all? My answer is “NO.”

“This ruling recognizes the plight of older workers. The state of the economy is such that older Americans need to work longer in order to afford retirement, and who knows what will happen with Social Security.”

“How are younger workers supposed to get experience if they can be discriminated against on their age – do they have to wait until their 40 to get a job?”

“Why can there be “REVERSE” race and gender discrimination and not reverse age discrimination? I didn’t understand your comments in the newsletter on this.”

“I’m an experienced productive older worker, and I feel that my employer has retained me all these years because of my dedication and results. It is somewhat insulting to assume that I need the Supreme Court to tell my employer that they should keep me on board because of my age. Seventy or seventeen, it should all be about my abilities.”

The whole concept of “reverse discrimination” is murkier than ever before. There was a time when Title VII was viewed as protecting only racial minorities and women, but years ago the Supreme Court expanded the reach of that statute to other groups. The result has been successful “reverse discrimination” claims by Caucasians and men. But, said the Supreme Court, the Age Discrimination in Employment Act (ADEA), could not be similarly broadened, because it includes specific language that limits its protections to those over forty only, as opposed to protecting against discrimination based on age considerations generally.

Does that end the reverse-discrimination-based-on-age issue? Don’t bet on it. Although the federal ADEA has now been clarified at the highest level, this issue has tremendous potential to turn into a hot bed of state legislative activity. Several states have already specifically addressed the issue by statute, while others have relied on judicial interpretation. How far the states will take age discrimination remains to be seen, but stay tuned.

Here’s what all of this proves. Once you think you know the rules of the game, they suddenly change; what seems like a logical analogy between race and age discrimination is now illogical; and if ever there were a time to review your employment practices with counsel, this is it. Let us know if we can help.