How to avoid FMLA Disputes
In 2000, a maintenance worker who had worked at a hospital for
25 years asked for unpaid leave under the Family & Medical
Leave Act (FMLA) to care for his ailing father. The hospital
granted the leave, but fired the worker while he was out because he
rated poorly on a new performance-review program based on the
amount of work completed each month. The worker sued the hospital
in federal court, alleging that he couldn't possibly have completed
the same amount of work as others while he was out. A jury, in
Schultz v. Advocate Health, decided that the hospital had illegally
retaliated against him for taking time off and awarded him more
than $11 million in damages. The hospital's appeal is pending.
Although the appellate court could reduce (or increase) that
award, the jury sent a clear message: The FMLA's purpose - to help
employees balance work and family responsibilities - is important
in our society, and employers must not penalize workers who take
advantage of the law.
More FMLA claims Enacted in 1993, the FMLA gives qualifying
employees the right to take up to 12 weeks of unpaid, jobprotected
leave in any 12-month period to care for their (or an immediate
family member's) serious medical condition. As U.S. life expectancy
continues to rise, more and more workers are caring for aging
parents, their growing children and themselves. We can expect more
FMLA requests and more disputes and lawsuits.
How can you protect your company from FMLA claims and lawsuits
and promote your workers' health and job satisfaction? By becoming
familiar with the law and taking steps to ensure that your managers
and supervisors comply with it. This article summarizes your and
your employees' FMLA rights and responsibilities - and how to avoid
disputes.
Employee Rights and Obligations
Your company is covered by the FMLA if you employ 50 or more
employees - counting both fulltimers and part-timers - working
within 75 miles of the worksite. To be eligible for unpaid FMLA
leave, an employee must have worked for you for at least 12 months
and for at least 1,250 hours within the past 12 months before
requesting leave. But you don't have to count vacation time or
previous medical leave when totaling the number of hours worked in
the past 12 months. If you rehire a former employee, you can't deny
a leave request because the worker took previous FMLA leave. Each
qualified employee is entitled to take up to 12 weeks of unpaid
leave during any 12-month period. But if a husband and wife both
work for you, you may limit their combined total to 12 weeks to
care for a newborn, a newly adopted child, or a child or a parent
with a serious medical condition.
Serious medical conditions
To be considered "serious," a medical condition must involve a
physical or mental illness, injury or impairment - and any later
related incapacity - that requires a health-care professional's
continued treatment. But the birth or adoption of a child qualifies
under FMLA. Employees with a serious medical condition qualify for
leave if they can't perform any one of their essential job
functions because of the health condition. And you must grant time
off for them to receive medical treatment. Suppose an employee asks
for leave to care for a sick family member. You have to grant leave
if its purpose is to provide for the family member's physical or
psychological care or basic comfort. The family member can be a
parent, spouse, child under 18 - including foster children,
stepchildren, and legal wards - or a disabled older child.
Timing
Your employees must give 30 days' notice when they apply for
FMLA leave, if the health condition is foreseeable, or as soon as
possible if not foreseeable. In an emergency, another adult may
request leave for an employee unable to do so. You may delay the
start of leave by up to 30 days if an employee fails to give 30
days' notice for a foreseeable health condition. Employees don't
have to specifically mention the FMLA to assert rights under the
act. But they must supply enough information about the illness or
injury so that you can determine whether the request for leave
qualifies under the FMLA. Employees must make an effort to schedule
hospitalizations, treatments and doctor visits so that their
absence doesn't disrupt company business. An employee can take all
12 weeks of leave at once - or intermittently - for a single
qualifying condition. But check with our attorneys to see what
special conditions employers must meet to qualify for intermittent
leave. Employees returning from FMLA leave are entitled to the same
or equivalent job (one with similar duties and responsibilities)
with the same pay and other employment terms and conditions as
before. You must continue to maintain their group health and dental
insurance while they're on FMLA leave. Some exceptions exist, of
course. For example, if you lay off an entire department, the FMLA
may not protect the job of a department member on family medical
leave.
Employer rights and obligations
When an employee applies for leave, it's up to you, the
employer, to determine if the leave's purpose qualifies under the
FMLA. Of course you may grant paid or unpaid leave regardless of
whether it qualifies - you're the boss. But if it does qualify
under FMLA, you must grant leave. If leave requests meet FMLA
requirements - whether or not the employees specifically
mention
FMLA - you must notify them in writing that the granted time off
counts against their annual FMLA 012 entitlement. This is
important. Failing to notify can lead to costly disputes and
claims. For example, you may be forced to grant an additional 12
weeks of leave to an employee if you failed to record previous
leave as FMLA related.
You may require an employee who requests FMLA leave to provide a
heath-care provider's medical certification confirming the
condition's nature and seriousness. If leave is for the employee's
own illness or injury, you can require a doctor's opinion (in some
cases at your expense) of the employee's inability to perform
essential job functions. You may also require a fitness
certification before the employee returns to work. But you
generally shouldn't dispute a doctor's opinion about the
seriousness of the condition or the employee's fitness for work.
Some special rules apply when leave is requested for the birth or
adoption of a child or for leave to care for a family member with a
serious health condition. For example, sometimes you can require an
employee to substitute paid leave - such as vacation or personal
time - for FMLA leave. If in doubt about when you may require a
substitution, please ask us.
Here are more steps that can help you stay out of trouble with
the Department of Labor, whose Wage & Hour Division administers
the FMLA and processes employee claims:
Post a notice that summarizes FMLA provisions (you can download
one in PDF format from this Web site: www.dol.gov).
Keep detailed, accurate records of FMLA-related requests,
grants, rejections, notices, confirmations, medical records, dates
and duration of leave, and disputes.
Never discriminate or retaliate against an employee (or former
employee) on the basis of an FMLA-leave or request for leave. Also,
our attorneys can help you comply with the act.
Look at the bright side. Although the FMLA can add to your
company's administrative burden, it also helps to keep families
healthy and happy. This can improve their morale and productivity.
If you have questions about how to apply the FMLA in your business,
we can answer them.
Sidebar: Federal vs. state FMLAs
Eleven states and the District of Columbia have enacted their
own family and medical leave statutes: California, Connecticut,
Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island,
Vermont, Washington and Wisconsin. Some of these state statutes
provide more generous benefits than the federal FMLA. If the
statutes - or any of their provisions - differ from the FMLA, the
employee is entitled to the greater benefit.