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Family and Medical Leave Act: An

OverviewJo Ellen Whitney

o WHAT IS IT?

o WHO IS COVERED?

o WHAT TYPES OF LEAVE ARE COVERED?

o FMLA APPLIES TO LEAVE. NOW WHAT?

o THINGS THAT GO WRONG

o RETURNING TO WORK

Family and Medical Leave Act (FMLA)

What is it?

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

Who is Covered?

Eligible Employees

o Worked 12 months for employer

o 1,250 hours in past 12 months

Of Covered Employers

o Engaged in commerce

o 50+ employees

o Integrated/Joint employers

What Types of Leave are Covered?

o Birth or Adoption of Children

o Serious Health Conditions

o Military Leave

Types of Leave Covered: Children

o The birth of a son or daughter of the employee and to care for such son or daughter

o The placement of a son or daughter with the employee for adoption or foster care

o Son or daughter includes biological, adopted, foster, step, or legal ward.

Child-Based Leave, Continued

o Entitlement to child-based leave expires 12 months from the date of birth/placement

o Child-based leave may not be taken intermittently by the employee or on a reduced leave schedule unless the employee and employer agree otherwise

Types of Leave Covered: Serious Health Conditions

o To care for the spouse, son, daughter, or parent of the employee if they have a serious health condition

o Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee

What is a ‘Serious Health Condition?’

o Incapacitation for more than three calendar days

o Two visits to healthcare providero First visit: within seven days of the first day of incapacity

o Second visit: within 30 dayso UNLESS: Specific order by the physician and extenuating circumstances, such as inability to obtain an appointment

Health-Based Leave, Continued

o Leave may be taken intermittently or on a reduced schedule when medically necessary

o If such leave is foreseeable, employer may transfer employee temporarily to an alternate position, which musto offer equivalent pay and benefitso better accommodate the recurring periods of leave

Types of Leave Covered: Military Leave

o The spouse, child, parent, or nearest

blood relative of an active duty service

member may receive up to 26 work

weeks of unpaid leave in a 12 month

period to provide care for a service

member injured while on active duty.

o This leave applies per service

member

Types of Leave Covered: Military Leave, Continuedo Or, a service member who has been

called to active duty, his/her spouse,

child, or parent may receive up to 12

weeks of leave in certain “exigent

circumstances.”

FMLA Applies to Leave. Now What?

o Entitled to 12 workweeks of leave during any 12-month period o Continuance of health insurance

o Employer may calculate the 12-month period by one of four methods

o Employee must put employer on notice

o Leave can consist of unpaid leave

FMLA Applies to Leave. Now What? 12-Month Period

o Four methods by which an employer

may calculate the 12-month period:

o Calendar Year

o Any fixed “Leave Year”

o From the date an employee’s leave

begins

o “Rolling” period measured backward

from the date an employee uses leave

FMLA Applies to Leave. Now What? Notice

o Noticeo Employees need not specifically ask for FMLA leave

o Employees must provide employer with enough information to put employer on notice that the employee may require FMLA leave

o Employers have five business days to notify employee that leave is designated FMLA leave

FMLA Applies to Leave. Now What? Paid and Unpaid Leaveo Employer can require FMLA leave to run concurrently with paid leaveo Employer or employee may

o use accrued paid vacation leave or personal leave

o use accrued paid family leave if leave is child-based

o use accrued paid medical or sick leave if leave is health-based

FMLA Applies to Leave. Now What? Intermittent and

Reduced Leaveo Employees desiring intermittent or reduced leave must have such medical need that can be best accommodated through an intermittent or reduced leave schedule.

o Only the leave actually taken may be counted toward the 12 weeks of leave the employee is entitled to

Things That Go Wrong

o Employer that violates FMLA is liable for: o Wages, salary, employment benefits, or other compensation lost because of the violation, up to the sum equal to 12 weeks of the employee’s wages/salary

o Interest on such compensation

o Reasonable attorney’s fees

Things That Go Wrong, Continued

o Employee must bring a FMLA claim

within 2 years of the employer’s

violation

o If employer’s violation was willful,

however, an employee has 3 years to

bring a claim from the date of the

violation

Returning to Work

o Employees who take FMLA are entitled on returno To be restored to the position held by the employee when the leave commenced; or

o To be restored to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment

o Employees need not be able to function at 100%

Returning to Work, Continued

o An employer may deny restoration to certain “Highly Compensated Employees” ifo The denial is necessary to prevent substantial and grievous economic injury

o The employer properly notifies the employee

o If leave has already commenced, the employee elects not to return

Returning to Work, Continued

o “Highly Compensated Employees” are

those salaried employees who are

among the highest paid 10% of the

employer’s employees within 75 miles

of the facility at which the employee is

employed.

Returning to Work, Continued

o If an employee is unable to perform

the essential functions of the former

position due to a physical or mental

condition, including the continuation of

a serious health condition, the

employee has no right to restoration to

another position under the FMLA

Returning to Work, Continued

o Employer may recover health insurance premiums paid to cover employee during period of leave ifo The employee fails to return after leave period; and

o The employee fails to return to work for a reason other than a serious health condition or other circumstance beyond employee’s control

Conclusion

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

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Disclaimer

o Due to time limitations, please understand that this is not intended to be a definitive analysis of the subjects discussed.

o Material contained in this presentation is a general review of the applicable law, and must not be considered as a substitute for sound legal advice on your own independent situations.