FMLA: The Law that Never Sleeps

The Family and Medical Leave Act (FMLA) is often tweaked, adjusted or reinterpreted as cases of alleged abuse continue to pop up and courts are asked to weigh in. With so much change, it’s a good idea to check your policies regularly. Is your company in compliance?

Here’s a very streamlined recap of the top 10 FMLA fundamentals to refresh your memory. (Keep in mind that your state and local laws may have stricter requirements.)

1. Allowable purposes for unpaid leave up to 12 weeks: Attending to the birth or adoption of a child, caring for a family member with a serious health condition, or suffering a health condition that prevents one from performing essential job tasks. (Special rules apply where family members are on active duty in the military.)

2. To be eligible, employees must: Have logged at least 1,250 hours of service during the period before the leave, and have worked for the employer for one year over a period no greater than seven years (that is, employment gaps are permissible).

3. Private sector employers are exempt from the FMLA if: They have fewer than 50 employees overall or at a specific site that’s at least 75 miles away from any of its other employment sites.

4. When taken, the FMLA leave period: Doesn’t have to be a single block of time consisting of consecutive days; intermittent leave may be possible, as well as working on a reduced schedule basis. When leave is intermittent in a nonemergency situation, employees should make a “reasonable effort” to accommodate the operational scheduling needs of the employer.

5. Maintenance of benefits: Employees out on FMLA leave must stay on the employer’s health plan under the same terms (including cost-sharing provisions) as before.

6. Coordination with paid leave benefits: Often it’s possible for employers to require employees taking FMLA leave to use up accrued paid leave time concurrently.

7. When requesting an FMLA-mandated leave, employees must: Give employers a 30-day notice, if the need for the leave was foreseeable, or otherwise as soon as possible. When making an FMLA leave request for the first time, employees don’t need to state that the request is being made under the FMLA. They merely need to provide employers enough information about the purpose of the leave for the employer to independently determine that the leave is sanctioned by the law.

8. Notification requirements: Employers must maintain posted notices about the FMLA; include information about it in their employee handbooks; and, upon request, provide information about employees’ rights and responsibilities under the law.

9. Medical certification: When a leave request is based on a serious medical condition of the employee or the employee’s family member, the employer can request documentation from a health care provider, as well as seek second and third opinions.

10. Job restoration: When employees return from their leave periods, they must be given their original jobs or another position with equivalent pay, benefits, and other employment terms and conditions.

Legal Authority

In an FMLA case, only a U.S. Supreme Court decision can affect the law nationwide. Still, a lower court ruling — even if it occurs in a jurisdiction other than your own — might be influential where you’re located. Below are three noteworthy cases that highlight the need to keep abreast of FMLA legal developments:

Case 1. The court upheld an employer’s decision to terminate an employee while she was on FMLA leave, against the employee’s claim that her termination violated her FMLA rights and was discriminatory. The court accepted the employer’s explanation that it had a sound business rationale to eliminate the employee’s position: The company was shrinking; other employees could assume her duties, and it would have made the same decision if the employee weren’t on leave.

Case 2. The court agreed with an employee’s argument that she was being prevented from gaining the full benefit of her FMLA leave because of her employer’s pattern of making substantial requests of her time while on leave. The court held that it was permissible for the employer to contact employees on leave for certain tasks. Examples include:

• Passing along relevant institutional knowledge to new staff,
• Providing computer passwords,
• Giving closure on complicated assignments, and
• Identifying other employees who could fill the void created by her absence.

But it was inappropriate for the employer to contact the employee regularly with questions about her work duties and absences, inputting data, and taking time out to receive training before returning to work. The fact that the employee was terminated shortly after her return to work buttressed her argument that her employer was trying to interfere with her rights.

Case 3. The Ninth Circuit Court of Appeals upheld a lower court ruling in favor of an employer that terminated an employee who claimed her FMLA leave benefits were denied. The employee had requested, and received, a period of leave to care for her sick father. But she’d requested that it not be treated as FMLA leave, but instead as ordinary paid leave. The company agreed.

However, the employee didn’t return to work until two weeks after the date she’d promised to come back and was terminated. She argued that the extra two weeks should have been treated as protected FMLA leave, because her reason for remaining away from work was to care for an ailing family member. The courts drew two conclusions: 1) It’s possible for an employee to seek and receive non-FMLA leave for an FMLA-eligible purpose, and 2) Unauthorized leave cannot automatically become protected FMLA leave without the employee explicitly requesting it on that basis.

Regular Tune-Ups Advised

New FMLA cases are decided all the time, creating a demand for attorneys who specialize in this corner of the law. Therefore, given the fluidity of FMLA legal interpretation, it’s prudent to periodically review your compliance with the evolving legal standards.