Family & Medical Leave Act

Question 1

How much leave is guaranteed by the FMLA?

Answer 1

12 weeks, which can be divided up during any rolling 12-month period; must be tracked in smallest increment you use to track other leave, e.g., hourly, but do not need to track based on payroll increments [??]

Question 2

What are the basic requirements for the FMLA to apply?

Answer 2

Only applies to workplaces with > 50 employees, including part-time employees; employee must have worked 1250 hours during the previous 12 months as of the date that the FMLA leave is to begin.

Question 3

What about substance abuse?

Answer 3

FMLA does not cover substance abuse binges, but does cover substance abuse treatment.

Question 4

What effect can FMLA leave have on benefits?

Answer 4

An employer can pro-rate a performance bonus for leave taken, but cannot count leave against any attendance-based perks.

Question 5

What does the FMLA require upon return from leave?

Answer 5

1) Same or similar position (which DOES mean virtually identical status, responsibilities, and opportunities for advancement)
2) Employee maintains right to reinstatement even if he has been replaced or his position has been restructured to accommodate his absence.

Question 6

Is there individual liability under the FMLA?

Answer 6

Yes, for the decision makers. Any person acting, directly or indirectly, in the interest of the employer with respect to a covered employee is considered a “covered employer.”

Question 7

What are the types of leave?

Answer 7

There are six.

Question 8

What are the bases for leave?

Answer 8

There are six.

Question 9

What are the basic elements of FMLA?

Answer 9

1) “covered employers” to provide “eligible employees” the right to take
2) unpaid “block” or “intermittent” family or medial leave for a “qualifying reason”
3) for up to 12 weeks in a calendar or rolling “12-month period”
4) while maintaining their employer-provided health insurance, and
5 to “reinstate” the employees to the “same or substantially equivalent position” when the leave ends

Question 10

What burden is there on the employee, if any?

Answer 10

Employee must make a reasonable effort to schedule leave for planned treatment so that it does not disrupt employer’s business.

Question 11

What effect can FMLA leave have on job growth?

Answer 11

Absences from work due to FMLA leave may not be considered in decisions regarding employee promotions, transfer opportunities, or disciplinary actions.

Question 12

Best practices?

Answer 12

Companies should implement a practice of communicating with employees, in advance of and in anticipation of their return-to-work date, to confirm when they are returning and whether they will be requiring any additional accommodation, such as additional leave.

Question 13

What types of comments should management be trained to avoid making regarding FMLA leave?

Answer 13

1) Harassment about taking leave
2) Expressing frustration about the employee’s use of FMLA leave
3) Making negative comments about FMLA leave time on a performance review
4) Suggesting that employee not take FMLA leave
5) Giving a subpar rating on a performance review shortly after the employee took leave w/o supporting evidence of deteriorating performance
All of the above can be used to defeat SummJ for the employer.

Question 14

??

Answer 14

Employers cannot engage in conduct that discourages an employee from requesting or taking FMLA leave, and employers must provide privilieges and benefits to employees who take FMLA leave in the same manner that they offer to those on non-FMLA leave.

Question 15

What constitutes “incapacity”?

Answer 15

Incapacity is defined as “the inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery” from treatment.

Question 16

What does it mean to be “unable to work”?

Answer 16

The regulations provide that an employee is “unable to perform the functions of the position” if the employee’s health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of his position within the meaning of the ADA.

Question 17

What does it mean to be “unable to attend school”?

Answer 17

While such issues as the common cold, flu, upset stomach, etc. do not meet the definition of a serious health condition and do not qualify for FMLA leave, where a child is prohibited from attending school or day care due to otherwise ordinary seeming conditions, the employee may be eligible for FMLA.

Question 18

What performance standards should be applied to an employee who has taken FMLA leave?

Answer 18

Employers cannot require an employee taking FMLA leave to have the same level of production, sales, completion of projects, etc. as if that employee had not taken leave.

Question 19

Does any contact with an employee on FMLA leave constitute “interference”?

Answer 19

No. Courts have held that fielding occasional calls and e-mails that relate to an employee’s job while on leave is a “professional courtesy” that does not interfere with FMLA leave. Where an employee is passing on “institutional kowledge” or providing closure on open assignments, employers do not violate the FMLA.

Question 20

What are the hazards of communicating with an employee while on FMLA leave?

Answer 20

If the employee is non-exempt, he may have a claim under the FLSA for working during unpaid FMLA leave.

Question 21

Can an employee be required to make up FMLA leave?

Answer 21

The regulations contain no prohibition against requiring employees to make up FMLA leave; however, a policy or practice to encourage employees to make up leave time is an invitation to an FMLA interference claim.

Question 22

What if the employer has a policy that allows employees on non-FMLA leave to make up their absence?

Answer 22

If an employer has a policy or practice of allowing employees on non-FMLA leave to make up their absence, the employee on FMLA leave must be allowed the same privilege.

Question 23

What constitutes an “equivalent position”?

Answer 23

An equivalent position is one that is “virtually identical” to the employee’s former position. Pay and benefits must be equivalent, along with job status, responsibility, and authority. This includes any pay premiums to which the employee was entitled before the leave.

Question 24

What terms of employment apply to employees returning from FMLA leave?

Answer 24

1) Reinstatement to the same or a geographically proximate worksite, the same shift or equivalent work schedule, and same opportunity for bonuses, profit sharing,etc.
2) Any unconditional pay increases that occurred during the leave
3) Pay increases based on seniority, length of service, and work performed may be delayed for employees on FMLA leave

Question 25

Are there any limitations on the restoration right?

Answer 25

Yes. An employee’s restoration rights are whatever they would have been had the employee not been on leave. If the employee would have been laid off or terminated “but for” the leave, the employee has no right of reinstatement. In addition, if the employee is unable to perform an essential function of the position because of a physical or mental condition, the employee has no right to restoration to another position under the FMLA. Burden of proof is on the employer. Also, no applicability in cases of fraud or leave abuse.

Question 26

Is there any way to terminate an employee who has just returned from FMLA leave?

Answer 26

FMLA does not prohibit employers from taking otherwise legal employment actions for reasons unrelated to an employee’s FMLA leave. Such legitimate employment actions might include a reduction in force or downsizing.

Question 27

What is the exception for “key employees”?

Answer 27

An employer may refuse to reinstate a salaried employee who is among the highest paid 10% of all employees within 75 miles of the employee’s worksite, so long as the denial of restoration is necessary to prevent “substantial and grievous economic injury” to the employer’s operations. The determination that an employee is a “key employee” must be made at the time FMLA leave is requested and notice given to the employee. The determination of “grievous economic injury” is made based on restoration, not the employee taking leave.

Question 28

Is an employee who completed a portion of his/her 12-month requirement as a temporary employee eligible for FMLA leave?

Answer 28

Likely, yes, pursuant to 29 C.F.R. § 825.106, “joint employment will ordinarily e found to exist when a temporary placement agency supplies employees to a second employer.” See also Miller v. Nordam Group, N.D. Okla. Similar rulings have been entered in Illinois.