FMLA

The Family Medical Leave Act (FMLA) allows certain employees to take up to 12 weeks of unpaid leave without job or health benefit loss consequences each year. A mistake in responding to a request for family medical leave may leave an employer facing a suit for compliance by the United States Department of Labor or a private suit for damages by an individual employee.

What can be done to avoid a mistake in responding to a request for leave under the FMLA?

1. You can read the entire law and hope you understand what is meant and how it will be interpreted.  Read the FMLA

2. You can try to get the facts from the Department of Labor.  DOL Fact Sheet

3. You can review "FAQ'S" from the DOL and hope they match your "FACTS".  DOL Employee/Employer Advisor

4. You can leave it up to us. Contact The Law Office of Gregory T. Gibbs

While we hope you find your answer by using the resources in paragraphs one through three above, the only results we can guarantee are through our office.

FMLA  ISSUES

  EMPLOYER COVERAGE

FMLA applies to all:

  * public agencies, including state, local and federal employers, local education agencies (schools), and
  * private sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce, including joint employers and successors of covered employers.

  EMPLOYEE ELIGIBILITY

To be eligible for FMLA benefits, an employee must:

(1) work for a covered employer;

(2) have worked for the employer for a total of 12 months;

(3) have worked at least 1,250 hours over the previous 12 months; and

(4) work at a location in the United States or in any territory or
possession of the United States where at least 50 employees are employed by the employer within 75 miles.

  LEAVE ENTITLEMENT

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12 month period for one or more of the following reasons:

  * for the birth and care of the newborn child of the employee;
  * for placement with the employee of a son or daughter for adoption or foster care;
  * to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  * to take medical leave when the employee is unable to work because of a serious health condition.

Spouses employed by the same employer are jointly entitled to a combined total of 12 work weeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, and to care for a parent who has a serious health condition.

Leave for birth and care, or placement for adoption or foster care must
conclude within 12 months of the birth or placement.

  INTERMITTENT LEAVES

Under some circumstances, employees may take FMLA leave intermittently which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.

  * If FMLA leave is for birth and care or placement for adoption or
foster care, use of intermittent leave is subject to the employer's
approval.
  * FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work.

  SERIOUS HEALTH CONDITION

"Serious health condition" means an illness, injury, impairment, or
physical or mental condition that involves either:

  * any period of incapacity or treatment connected with inpatient care i.e., an overnight stay) in a hospital, hospice, or residential
medical care facility, and any period of incapacity or subsequent
treatment in connection with such inpatient care; or
  * Continuing treatment by a health care provider which includes any
period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to:

(1) A health condition (including treatment therefor, or recovery
therefrom) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:

  * treatment two or more times by or under the supervision of a health care provider; or
  * one treatment by a health care provider with a continuing regimen of treatment; or

(2) Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or

(3) A chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not necessary for each absence; or

(4) A permanent or long term condition for which treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or

(5) Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).

  HEALTH CARE PROVIDER

"Health care provider" means:

  * doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctors practice; or
  * podiatrists, dentists, clinical psychologists, optometrists and
chiropractors (limited to manual manipulation of the spine to correct
a subluxation as demonstrated by X ray to exist) authorized to
practice, and performing within the scope of their practice, under
state law; or
  * nurse practitioners, nurse midwives and clinical social workers
authorized to practice, and performing within the scope of their
practice, as defined under state law; or
  * Christian Science practitioners listed with the First Church of
Christ, Scientist in Boston, Massachusetts; or
  * Any health care provider recognized by the employer or the                   employer's group health plan benefits manager.

  CONTINUING HEALTH BENEFITS

A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.

In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.

  JOB RESTORATION

Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy.

  KEY EMPLOYEES

Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highlypaid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:

  * notify the employee of his/her status as a "key" employee in response to the employee's notice of intent to take FMLA leave;
  * notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;
  * offer the employee a reasonable opportunity to return to work from
FMLA leave after giving this notice; and
  * make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests
restoration.

A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.

  NOTICE AND CERTIFICATION

Employees seeking to use FMLA leave are required to provide 30 day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.

Employers may also require employees to provide:

  * medical certification supporting the need for leave due to a serious
health condition affecting the employee or an immediate family member;
  * second or third medical opinions (at the employer's expense) and
periodic recertification; and
  * periodic reports during FMLA leave regarding the employee's status and intent to return to work.

When intermittent leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer's operation.

Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this posting requirement may be subject to a fine of up to $100 for each separate offense.

Also, covered employers must inform employees of their rights and
responsibilities under FMLA, including giving specific written information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave.

  ENFORCEMENT

The Wage and Hour Division  of the United States Department of Labor investigates complaints. If violations cannot be satisfactorily resolved, the U.S. Department of Labor may bring action in court to compel compliance. Individuals may also bring a private civil action against an employer for violations.