The Law
- The Family and Medical Leave Act (FMLA) is a federal law that provides eligible employees with the right to take up to 12 workweeks of job-protected unpaid leave in a 12 month period for a serious health condition.
- The FMLA applies to all employers with 50 or more employees.
- Some states also have state family leave laws
- If an employee works in a state that also has a state family leave law, the employee's leave will count towards both the federal FMLA and the state family leave law.
Did You Know?
- Employees who complain about harassment are protected from any retaliation for reporting the harassment
- An important element of harassment is that the conduct be unwelcome
- Same sex harassment also violates the law
- Harassment based on pregnancy is also considered sexual harassment
- Harassment of any protected class violates the law. See Unlawful Harassment Page.
Can You Afford To Not Comply?
- $318,000 in case against Nutrition Management Services for terminating pregnant employee and denying her FMLA leave(Brown v. Nutrition Management Services, No. 06-2034, ED PA, 2009)
- $10.65 million compensatoryand punitive damages for violation of the FMLA against Christ Hospital for FMLA interference and
- $722,000 award against Pfizer in Dotson v. Pfizer, Inc. for interference with FMLA rights and retaliation.
- $10.75 million against Advocate Health and Hospitals Corp, which owns Christ Hospital in Illinois for violation of the FMLA and $450,000 against two supervisors (This verdict was appealed and a settlement entered into)
What The Law Requires
- Have a well drafted FMLA policy which should be included in your employee handbook
- Provide training for your managers on the FMLA
- Reinstate employees to the same or similar position with same terms, conditions and benefits at end of employee's FMLA leave
- Do not retaliate against employees for taking FMLA leave
- Notify employees within 5 days of learning of the need for FMLA leave
How We Can Help
- We can draft a FMLA policy for you
- We can provide on-site or on-line training for your managers and employees
- We can train your managers on how to reinstate employees at the conclusion of their FMLA leave
- We can train your managers on how not to retaliate after FMLA leave
- We can assist you in learning how to draft letters notifying employees within 5 days of learning of the need for FMLA leave
Definitions
Serious Health Condition
This is perhaps the most important definition within the entire FMLA and the one that presents the most problems for employers. The key to understanding this term is realizing that “serious” is a misnomer. What is a serious health condition under the FMLA has nothing to do with what you and I believe to be “serious”. Rather, a serious health condition under the FMLA merely means a “health condition” that falls within the definition set forth in the FMLA regulations. What is that definition? Well, it is broken up into three categories.
- An illness, injury, impairment or physical or mental condition that cause a stay of One or more Overnights in a hospital, hospice, or residential medical care facility
- An illness, injury, impairment or physical or mental condition that causes an employee to be out of work for more than 3 days; or
- An illness, injury, impairment or physical or mental condition that exists for any period of time (does not have to be 3 or more days) based on:
- A chronic condition; or
- A permanent or long-term condition; or
- A condition requiring multiple treatments; or
- A condition due to a pregnancy or for prenatal care
So for the second category where the employee has to be out of work for more than 3 days, this class of health conditions has a time limit to them. They do not become serious health conditions unless they cause the employee to be out of work for more than 3 days. The third category of serious health conditions are ones for which there is no time limit. If you have them for a day or even less than a day they can still be defined as “serious health condtions” if they meet the other criteria, namely that they are due to a “chronic “condition, or “permanent or long-term conditions” or “conditions requiring multiple treatments” or are due to a pregnancy or for prenatal care then the period of time that you have the condition is irrelevant and it can often be for just one day or even less than a day.
For the second category, the FMLA includes within the definition that you either (a) saw a health care provider one time and he gave you a “regimen of continuing care” which merely means that he may have given you a prescription such as a prescription for antibiotics or (b) you saw a health care provider two times and he did not give you a “regimen of continuing care” meaning you were not given a prescription. The new FMLA regulations set forth that the two times that you see the health care provider must be within 30 days of the onset of the first day of incapacity. In addition, the first visit to the health care provider has to be within 7 days of the onset of the first day of incapacity. With regard to the one visit to the health care provider which results in a “regimen of continuing treatment”, the visit to the health care provider must take place within 7 days of the onset of the first day of incapacity.
Who is an “Eligible” Employee
An eligible employee, is an employee who:
- Has worked for the employer for 12 months
- Has worked for at least 1,250 hours in the 12 month period immediately preceding the leave; and
- Is employed at a worksite where at least 50 or more employees are employed by the employer within 75 miles of that workplace
Each of the above terms has a legalistic definition. Knowing and understanding this definition will employers curb employee abuse and avoid violating the provisions of the FMLA.
The 12-month period does not have to be consecutive. This means that an employer should keep excellent records of past employees. If an employee was employed by an employer 2 years ago for 6 months at one location, and now has been employed by the employer at another location for 6 months, the employee has satisfied the 12 month requirement. TIP: Employers need to check the records to determine whether an employee has been employed previously at any of the employer’s locations and how long the employee was previously employed before determining whether the employee is an “eligible” employee for purposes of FMLA leave.
The 1,250 hours must also be satisfied in addition to the 12 months of employment. There has been a lot of litigation in which the court will actually be counting the number of hours the employee worked. If the employee has worked 1,200 hours they are not eligible. It must be at least 1,250 hours. Also, the way that an employer counts the hours is determined under the principles set forth in the Fair Labor Standards Act which means time actually at work. So, for example, if the employee has been out on a leave of absence or vacation etc. TIP: The employer has the burden of proving that the employee has not worked the requisite 1,250 hours. Thus, employers should maintain accurate and detailed records of hours worked.
The employer does not need to have 50 employees within one locations. There could be 10 separate locations and as long as those locations are within 75 miles of each other and as long as there are 50 or more employees at those locations, then all the employees at those locations would be considered eligible employees if they also meet the other two requirements that they have worked for 12 months and 1,250 hours.
Reasons For Which You Can Take FMLA Leave
The FMLA allows an employee to take FMLA leave to care for:
- The employee’s own serious health condition
- The serious health condition of the employee’s spouse, parent or child
- The birth, foster placement or adoption of a child by the employee
Spouse
The FMLA defines spouse as a husband or wife as recognized by state law in the state in which the employee resides, not the state where the employee works. So, for instance, if the employee works in NY but lives in CT and CT recognizes common law marriage then the employee would be considered to have a “spouse” for FMLA purposes.
Parent of Employee
Parent is defined as “a biological, adoptive, step or foster father or mother or any other individual who stood in loco parentis to the employee when the employee was a son or daughter. TIP: In-laws are not considered parents so if an employee tells you they need to take care of their mother-in-law with a serious health condition, they are not allowed to take FMLA leave for this reason.
Child of Employee
Child is defined as “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under age 18” or is over age 18 and “incapable of self-care because of a mental or phsycial disability” at the time that FMLA leave is to commence. TIP: If an employee comes to you and tells you that her 20 year old daugther is sick and she needs to care for her, unless the child is “incapable of self-care” this would not be considered a child for which the employee could take FMLA leave to care for under the FMLA.
Persons who are “in loco parentis” are people who acted as the child’s parents and had the day-to-day responsibilities of caring for the child and financially supporting the child.
We have set forth above just a few of the many legalistic and complicated definitions set forth in the FMLA. To curb employee’s abuse and ensure that employers do not violate the provisions of the FMLA, we recommend contacting us to provide training on the FMLA. We also are available to draft an FMLA policy for you or to provide you with a manager’s desk copy of Questions and Answers on the FMLA.